There has been some news about non LPS facilities initiating and detaining patients under 5150 holds. Given that each county does things differently this information mainly applies to San Diego.
If a person is admitted to a non-LPS facility for medical treatment (not psychiatric treatment), then that person is no longer on a §5150. The designated person who wrote the §5150 may want to document why the §5150 process was not completed. The non-LPS facility does not have the ability to detain the person for care. If a person has been placed on a §5150 and has been detained and transported to a non-LPS facility, is not admitted to that non-LPS facility, and is then subsequently transported to an LPS facility, the §5150 process has been completed.
While not of controlling importance, punctuation is part of a statute and should be considered in its interpretation. § 5150 is written to lay out two separate criterion for detainment and evaluation. The use of the word “or,” in a statute, is to designate separate, disjunctive categories disjunctive In re E.A., 24 Cal. App. 5th 648, 234 Cal. Rptr. 3d 346 (2018). Welf & I C § 5150 code is written in the disjunctive meaning that the clauses separated by an “or” do not take precedent over the other.
Now looking at the code which mandates that:
When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, professional person in charge of a facility designated by the county for evaluation and treatment… upon probable cause, take… the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services.
Some advocates may see this phrasing to say either or. The evaluating person may detain them into custody for assessment, evaluation, and crisis intervention or they placement in an LPS facility designated for treatment and evaluation.
If the statute is read in this manner no case law currently answers the question of what "custody" means. It is unclear whether § 5150 reflects a legislative intent to have a broad applications in regards to LPS vs non-LPS facilities. The statute may not necessarily mandate an LPS facility, but most counties require detainment at a designated facility.
To examine this problem further San Diego county’s policy regarding LPS facilities.
Designated Facility vs. Non Designated Facility
The designated person is required to place the person in custody “in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services.” Welfare and Institutions Code §5150(a). Such facilities are frequently referred to as “LPS designated facilities” or “LPS facilities.” If a person has been placed on a §5150 and has been detained and transported to a facility that is not LPS designated (a non-LPS facility), the §5150 process has not been completed. Individuals brought to a non-LPS facility on a §5150 should still be assessed and transferred to an appropriate facility, as necessary.
The other issue that arises out of detainment at non LPS facilities is the use of back to back 5150 holds. By statute patients are not afforded the right to court appointed counsel until their 14 day hold in which they may petition the court for writ of habeas corpus. The law does technically allow for a writ during the 72 hour detainment period, but due to time constraints it is never implemented. The purpose of a 14 day hold is to provide the patient with the right to due process (1) a right to notice and (2) a right to be heard. The patients must be afforded a hearing where they can challenge the sufficiency of the evidence mandating an involuntary hold. Without this safeguard under Doe v. Gallinot patients could be held for extended periods of time without judicial review.
Guardian Ad Litems for LPS Conservatees
LPS Conservatorship follows probate procedures with certain exceptions. However, the probate code is silent on the use of GALs for LPS Conservatees who may appear to be so impaired they need a GAL.
Probate Code §1003(a)(2) provides for the appointment of a guardian ad litem for an incapacitated person "if the court determines that representation of the interest otherwise would be inadequate”.
Probate code does not elaborate much more on GALs so for the sake of this discussion In re Samuel A., 69 Cal. App. 5th 67, 284 Cal. Rptr. 3d 151 (2021) shall be the guiding authority.
In Samuel A., the juvenile court mandated that parents who are unable to meaningfully understand and assist their counsel due to mentally incompetency must appear by guardian ad litem. The test for mental competence for appointment of guardian ad litem is (1) whether the parent has the capacity to understand the nature or consequences of the proceeding and (2) whether they were able to assist counsel in preparing the case.
Under this court a parent may be found to lack capacity if they (1) do not understand the nature and purpose of the proceeding or (2) are unable to assist counsel in a rational manner in that they can communicate in a manner that counsel can understand at a general level. The parent need not show that they understand the complex details of dependency law; only that they are able to understand the general legal principals and are able to make informed reasonable decisions. GALs are reserved for when counsel deems it impossible to have a competent intelligible kind of a legal conversation with their client as a result of a mental health disorder.
Should the court consider appointing a GAL for a parent, it must conduct an evidentiary hearing to determine whether there is sufficient evidence of incompetence per the above standards. The law appears to be silent on this burden of proof in that it only clarifies that it should be “an informal hearing” In re Samuel A., 69 Cal. App. 5th 67, 284 Cal. Rptr. 3d 151 (2021).
Legal authority mandates this evidentiary hearing because dependency proceedings can result in termination of parental rights which many regard as the “death penalty” for parents as an “order terminating parental rights is “widely recognized as ranking ‘among the most severe forms of state action” even if it is in the best interest of the child. Transferring direction and control of the client’s litigation through appointment of a GAL jeopardizes the parent's interests and due process rights in such an important proceeding. The court rightfully notes that the parent’s right to actively participate in their dependency case should not be disregarded for the sake of expediency.
Now turning to LPS Conservatorship, GAL appointment may be considered for patients should they be so incapacitated that they are unable to meaningfully communicate with their counsel due to psychosis.
A Note: Most patients once they have reached the point of a P-con hearing, they have been stabilized to the point where they do not need a GAL. Again, counsel needs to remember that GALs are for severely incapacitated clients not clients who are difficult to work with. If counsel finds themselves working with a difficult client then they should consult with a supervisor to determine if new counsel needs to be appointed or to gather more tips for communicating.
Should an LPS client need a guardian ad litem, LPS Conservatorship also carries serious risks like parents in dependency proceedings as LPS Conservatorship confers the loss of civil liberties. The patient faces “the theoretical maximum period of detention [of] life as successive [LPS] petitions may be filed. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 223-224.). Additionally, their right to consent to treatment and placement are stripped and given to the public conservator. Because these rights are at stake, the appointment of a GAL and thus the deprivation of conservatee from interacting directly with their counsel should be afforded the same legal safeguards as in dependency.
Perhaps given the special nature of LPS Conservatorship hearings, conservatee’s competence should be measured in a similar way to Riese patients.
Before making determination that involuntarily committed mental health patients lack capacity to either consent or refuse medical treatment with antipsychotic drugs, courts must hold an evidentiary hearing to determine whether they are (1) able to understand the information presented to them at a basic level, (2) knowingly and intelligently reasonably act upon that information, (3) whether patient is aware of his situation/mental illness, (4) is able to understand the general benefits and risks of certain legal decisions, and (5) be able to participate in legal communication and planning with their case by means of rational thought processes.
When evaluating for rational thought process the court should ensure that the patient is making decisions that are not driven by delusional or hallucinatory perceptions and the patient’s ultimate decision to behind a legal decision should stem from a rational basis.
The court for LPS clients should ensure that any determination of incapacity must be supported by the clear and convincing evidence standard.
Counsel for LPS conservatees may feel that their clients are similar to those in Samuel A. but like the court notes in Samuel A., difficult or belligerent parents are not mentally ill and do not need a GAL. The court notes the important “without more” clause in that counsel and the trial court need a finding that shows mental incompetence before appointing a GAL no matter how “difficult” the client. Many mental health patients also present in a similar way as they find themselves confused and angry at the legal process. They may not have hallucinations or delusions but still present as angry and difficult to work with given the overwhelming nature of court and quickness of LPS hearings.
Using the same guidelines used in Riese the court will better be able to determine difficult behaviour from that stemming from mental illness alone. The patients may be stabilized from time in the hospital so they will not be as severely impaired. They may still need a conservator but this does not mean they cannot communicate with their counsel. Thus the court should not curtail the patient’s right to actively participate in their LPS Conservatorship case for the sake of expediency even if the mental health docket can run full most days.
Does a parent’s purposeful difficulty in communicating with their counsel mandate the use of a GAL?
In re Samuel A., 69 Cal. App. 5th 67, 284 Cal. Rptr. 3d 151 (2021)
In dependency cases, a parent who is found mentally incompetent must be appointed and represented by a guardian ad litem. A Guardian ad litem or GAL should be used in severe circumstances where the parent is either nonverbal, too psychotic, or unable to understand and communicate with their lawyer even at the “most basic level”. The court in determining whether the parent is too mentally incompetent must determine if the parent has the capacity to (1) understand the nature, purpose, or consequences of the proceeding and (2) to assist counsel in preparing the case in a rational manner. If the court determines that the parent lacks capacity it will appoint a GAL to represent the parent. Before appointing a GAL, the court should explain to the parent the purpose of a guardian ad litem and the grounds for believing that the parent is mentally incompetent. Before appointing a GAL for a parent, the juvenile court must conduct an informal hearing in order to ensure the parent’s due process rights are met. The parent shall be given (1) notice and (2) an opportunity to be heard.
Because the implications of appointing a GAL, it would be prejudicial error not to hold an evidentiary hearing. A guardian ad litem strips the parent (whose vital rights are at issue) of their own control over litigation and transfers it to the guardian. Consequently, the appointment must taken seriously and all evidence weighed appropriately.
If the parent raises on objection to a GAL, the record must indicate that the court considered substantial evidence of the parent's incompetence.
The question in this case is whether a parent who willfully complicates communication with their counsel is candidate for a GAL. The appellate court found that that the trial court committed prejudicial error when it _____ appointed a GAL for a parent who intentionally refused to work cohesively with her counsel and that the court’s notice was proper.
THE TRIAL COURT DID PROVIDE MOTHER WITH NOTICE AND AN OPPORTUNITY TO BE HEARD ABOUT GAL APPOINTMENT
Before appointing a guardian ad litem for a parent in a dependency proceeding, the juvenile court must hold an informal hearing at which the parent has an opportunity to be heard and the court lay out its reasoning for appointing a GAL. The trial court did provide parent with proper due process. If a parent who does not consent must be given an opportunity to be heard in which they persuade the court that a GAL is not required, and the juvenile court must make finding that a GAL is warranted.
The appellate court points to the record where the trial court advised mother of the upcoming appointment of a GAL.
The court explained its reasoning:
“[T]his hearing is to decide the appointment of a guardian ad litem to act on your behalf. Let me explain what that is. It's where someone would be appointed by the court to interface with your attorney and address the issues that [have arisen]. And the reason it comes up is that I've reached **157 a conclusion that there is some impediment that seems to suggest you lack the capacity to advise and accept direction from counsel, consult rationally, and understand the proceedings.... There is a finite amount of time for you to reunify with your son. And so much time has been devoted to addressing your issues and not your son[’s]. And I'll go through all of that. And the concern is that when we get to the contest, if, in fact, you are the impediment, you are the reason because of certain deficiencies that prevent you from aiding counsel in properly reunifying, you'll run out of time.”
The trial court did provide notice and an opportunity to be heard regarding this appointment. However, it committed prejudicial error when it relied on mother’s anger outbursts and alcoholism as proof necessitating a GAL.
TRIAL COURT INCORRECTLY RELIED ON ____ FOR GAL APPOINTMENT
Appellant asserts that although she was difficult and had a lot of conflict with her counsel, she contends there was no evidence supporting the juvenile court’s finding that she lacked the capacity either to understand the nature of proceedings or to assist her counsel in a rational manner. She cites to Evid Code § 730 evaluation that found she did not suffer from an mental health condition. Additionally, the record indicates that none of her prior attorneys opined that their communication difficulties were caused by mental incompetence. Finally, the trial court in its records stated it had appointed a guardian ad litem based on its belief that mother’s resistance was strategic to gain more time and to delay proceedings she believed were going to be unfavorable.
The department cites that many experienced and competent counsel in the area of dependency law were unable to assist mother. The fact that she went through so many attorneys and that no one was able to represent her for any meaningful length of time was prima facie evidence of appellant’s inability to assist counsel.
The appellate court cites to People v. Mendoza (2016) 62 Cal.4th 856, 879, 198 Cal.Rptr.3d 445, 365 P.3d and Penal Code § 1367:
“voluntary barriers to communication with counsel on the part of a defendant who was able to cooperate (but elected not to do) not demonstrate [an] incompetence” finding needed to appoint a GAL.
In examining the evidence, the trial court must examine the parent’s competency to cooperate, not cooperation with their counsel. Given that all parties opined that she was capable of assisting, but merely unwilling to do so, the trial court appointed a guardian ad litem for mother and reasoned that it was the only means available to progress the case while ensuring mother had the benefit of counsel. The appellate court noted that despite its well-intentions the court’s orders violated the parent’s right to directly communicate with their counsel given the potential outcome (termination of rights).
THE ORDER APPOINTING A GAL WAS NOT A HARMLESS ERROR THUS REQUIRING REVERSAL OF THE TRIAL COURT ORDER
Any juvenile court’s order terminating parental rights is “widely recognized as ranking ‘among the most severe forms of state action”. Because of this, parents are afforded many legal safeguards to ensure that parental rights are protected.
The court did not go into a detailed legal analysis, but it provided alternatives for counsel to use when mother was being too difficult. The court mostly focused on the fact that trial court made its ruling based on misplaced reliance on mother’s anger issues as the basis for GAL appointment and this alone was prejudicial error. It did not speak about whether the outcome would have differed if the trial court did not make this “mistake”.
The appellate court issued its remittitur ordering that the trial court vacate any orders in which the guardian ad litem was present and mother was denied the benefit of communicating directly with her counsel.
Appellate court notes that its remittitur will further delay already delayed proceedings but that is the inevitable consequence of violating appellant’s fundamental rights.
****Counsel should not use this case to prove doctrine of disentitlement which bars litigants who violate a court’s orders from seeking relief from the court.
69 Cal.App.5th 67
Court of Appeal, Second District, Division 7, California.
IN RE SAMUEL A., a Person Coming Under the Juvenile Court Law.
Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
Patricia A., Defendant and Appellant.
Background: In dependency proceeding, the Superior Court, Los Angeles County, No. 19CCJP00325A, Craig S. Barnes, J., appointed a guardian ad litem to act on mother's behalf. Mother appealed.
Holdings: The Court of Appeal, Perluss, Presiding Justice, held that:
1 appointment of guardian ad litem was not supported by substantial evidence, and
2 appointment of guardian ad litem was not harmless error.
Reversed and remanded with instructions.
CFTs for LPS Conserved Clients?
Sacramento county raised this unique issue of “CFTs” for LPS Conservatorship during the Joint Hearing on the LANTERMAN-PETRIS-SHORT ACT by the Assembly Health And Judiciary on December 15, 2021.
What was said during the meeting:
“I’d also encourage that we look at the LPS law... one of the things Sacramento county is doing which is really unique is we do basically Child and family team meetings. CFTs are in the dependency system, child family therapy or child family team meetings, those are
meetings that the department calls where the [family] sits in the center of the room and everybody surrounds the family and puts their heads together about what they need to do to
support that youth [or permanency placement] planning. We're doing that for LPS conservatees. We have our LPS Conserved client come to the table and [hold a CFT]. We [get] the public defender, county council, public guardian, case managers... we get together with the providers and say what do we need to do to make help you successfully engage in treatment”. Edited for clarity
At this time there is very little information about how LPS Conservatorship “CFTs” are conducted. To better conceptualize how CFTs may be implemented for LPS clients, below are is a sample guidelines for LPS CFTs adapted from current CFTs structure in the dependency system.
A very important note:
CFTs are already tricky to schedule in the dependency realm despite entire trainings and departments dedicated for CFTs. With how little funding there is for LPS, actual implementation for CFTs for LPS clients can pose to be a contentious issue as public guardians, public defenders, and treatment staff are very very busy. This guideline below is to be just that…. A simple guideline based on dependency practice. If other counties are to adopt CFTs for LPS clients, very very careful consideration needs to be made for everyone’s time.
Additionally, CFTs in the dependency realm are often filled with heightened emotions and sometimes conflict. Parents can yell, cry, or get into protracted arguments about case planning. With LPS clients, it would be unrealistic to expect that they would always present calmly or never be emotionally upset by an outcome. A facilitator would need to be trained in mental health de-escalation and mental illness sensitivity training to ensure that the meeting runs smoothly.
The CFT or child family team meeting one is a meeting process for families to provide input to social services and by extension the juvenile court. Topics of discussion center around how well case plan services are progressing for the parents, current placement, the youth’s health needs, and upcoming critical court dates. CFTs are an important process for everyone involved with child welfare to progress through a case plan that may have stagnated due to poor communication or inability to complete court ordered services.
CFT meetings are both formal and informal as they result in reports submitted to the court at the next review court date; but informal in that there are no bench officers present.
The goal of a CFT meeting is to practice shared decision making where the patient, case manager, medical providers, third party support, and/or legal representatives are present and all have input into the safety, placement options, case plan development, and outcome of the patient’s case.
All CFTs include:
• Explanation of the purpose of a CFT for all members.
• A shared agenda drafted and distributed prior to the meeting with input from all the members.
• Group agreements regarding privacy and rules.
• If necessary, the team shall review previous plans and changed circumstances.
• The group shall discuss patient’s progress and/or barriers to meeting treatment goals.
• Scheduling for the next CFT.
• For the entirety of the meeting always remembering to bear in mind the patient and family’s cultural and unique needs.
CFTs required for open LPS cases:
• Within the first 6 months of establishment of a permanent conservatorship, a CFT may be scheduled to ensure treatment goals are being met and if not how to change treatment planning to ensure that they are, and how the patient can work with the treatment team to transition to a lower level of placement as soon as possible.
• Evaluation of current and future placement needs including current restriction, patient’s desired changes in placement, and medication planning.
• The team shall evaluate or draft an ongoing case plan that every member of the team shall have input into with reevaluation every ___ months.
• Discussion around current psychotropic medication regimen.
• Discussion of side effects, complaints, patient desires to change or stay on certain medications and insight into choices.
Other important meetings topics may include (as applicable to case circumstances):
• Assessment of current placement in the least restrictive setting and review of treatment team notes to determine if patient is unable to maintain in the current setting.
• Assessment of third party relative and friends to determine if they are able to help meet the needs of the conservatee including ongoing treatment compliance, housing, assistance with food, clothing, and shelter.
for respite care.
• To develop a relapse preservation strategy so that conservatee does not need to return to a higher level of care
• Assessment of potential future placements such as group homes, board and cares, or residential facilities.
o If at any time the team’s placement recommendation is for more restrictive placement the patient’s legal representative and the public conservator representative shall present all the less restrictive options, why they would be unworkable, and all relevant legal guidelines supporting such a move.
• Planning for out of facility visits and potential family and friend visitation.
Attorneys in CFTs: LPS clients should be encouraged to consult with their attorneys for a CFT
CFTs in the dependency system are not legal proceedings but they may involve the parent’s counsel or legal representative. The department may have county counsel on the phone but not always due to high case loads. The same should apply for LPS Conservatorship CFTs as patients should have a legal representative or patient’s rights present at the CFT to ensure that their legal rights are retained.
•A patient’s attorney does not typically attend CFTs but they often request their attorney investigator’s presence at CFTMs.
•Notice is given to all team members when a new person will be present due to confidentiality rules.
•The attorney will be given the same information regarding the purpose, rules, and agenda of the CFT.
• All parties should know that CFTs are not for legal purposes of gaining “judicial advantage” or asking questions that relate to legal fact-finding that may impact court purposes. This needs to be done via formal discovery procedures.
•When attending, attorneys or investigators need to agree to the CFT confidentiality agreement
Scheduling a CFT
•CFTs shall be facilitated by a certain contracted facilitator who is trained in mental health and the needs of mental health patients.
•It should be either the public guardian or the treatment facility’s responsibility to schedule meetings and submit requests for facilitators giving all parties enough time to arrange their schedules.
NOTE: LPS clients should by statue be required to receive all information relating to the CFT. However, a client should retain the right to request that their information not be shared with certain members such as friends or relatives.
•All mandated reporting laws shall be in effect, and if abuse is disclosed, this
information may be used to submit the appropriate referral.
Notifying and inviting essential and non essential CFT participants
•The CFT Facilitator is responsible for providing notification dates and invitations to each
member as part of meeting preparation.
•If a required member declines to attend the meeting, the CFT Facilitator should encourage them to attend and if they are unable to, document the reason for absence.
•All participants other than the public guardian, treatment team member, and patient should be approved by the patient and public guardian.
•Prior to inviting other members, the facilitator shall inform the patient of the proposed person’s role in the meeting and ask if they have an objection.
Notifying and inviting CFT participants (cont.)
•Before each meeting begins, the CFT Facilitator should meet briefly with the conservatee and confirm key information and address any new concerns or safety issues with placement.
•If there are concerns with patients being violent or acting inappropriately, then the CFT facilitator should not “cut” the patient out of the process. They should strive to see what is making the patient agitated and if they are unable to resolve the issue possibly arrange for a different date or for the patient to “call in” instead.
ISSUE OF HEARING UNPRESERVED ISSUES AND CITING TO DEPUBLISHED CASES AS CONTROLLING AUTHORITY ON THIS ISSUE
Everyone is taught via MCLEs and supervisors that trial counsel forfeits an issue for review when they do not ensure that that objection or issue has been read and considered by the bench officer. They teach us that anything out of the court stating “on the record the court has read and considered” has not made it into the trial court record and counsel needs to take steps to ensure that thing is admitted properly. In the most recent published LPS Conservatorship case, the appellate court reminds everyone of this “exception” to the rule.
“The public guardian argues C.O. forfeited his jury trial claims because he failed to raise them in the trial court and fully participated in the court trial. C.O. acknowledges, and the record before us supports, that neither he nor his appointed trial counsel presented to the trial court the claims he now asserts” Conservatorship of C.O., No. H047087, 2021 WL 5371163, at *2 (Cal. Ct. App. Nov. 18, 2021)
However, the appellate court reminds the PG of its inherent authority to hear issues even if they are forfeited.
As a general rule, “a party may forfeit [the] right to present a claim of error to the appellate court if he did not do enough to ‘prevent or ‘correct’ the claimed error in the trial court.” The forfeiture doctrine is not absolute, however, as we are “generally not prohibited from reaching a question that has not been preserved for review by a party.” (Ibid.)
Conservatorship of C.O., No. H047087, 2021 WL 5371163, at *2 (Cal. Ct. App. Nov. 18, 2021)
We elect to decide the merits of C.O.'s claims. There are no disputed facts at issue and the parties agree, as do we, that our review of his claims are de novo. Under these circumstances, we exercise our discretion to address the merits, notwithstanding C.O.'s failure to raise the claims in the trial court.
Sure the appellate court stated its reasons however, this runs into the next issue. We are taught by supervisors and the writ department that we need to shepardize/keycite our briefs because we can get into trouble for citing unpublished/depublished cases, California Rules of Court, rule 977(a) citation of a case which has been ordered depublished. We were taught in an MCLE that the court in Alicia T. v. Cty. of Los Angeles, clearly admonishes and sanctions counsel for their reliance on an unpublished case. The Alicia T. court rejected counsel’s brief because the offensive citation was used for more than the mere form of the brief as counsel used it for proving a key point in their theory. (Alicia T. v. County of Los Angeles, 222 Cal.App.3d 869, 886 (Cal. Ct. App. 1990)
In making its argument, if the appellate court wished to rely on a case for stating that it exercised its discretion to address it because it raises a pure question of law and does not require the resolution of disputed factual issues, then shouldn’t the appellate court have cited to “good law” rather than a depublished case?
The court in Conservatorship of C.O., cited to Conservatorship of Bryan S. This case when shepardized/keycited clearly states that it is certified for partial publication. The appellate court in C.O.’s case cites to the very section that is ordered depublished.
Bryan Forfeited His Timeliness Objection.
** [NOT CERTIFIED FOR PUBLICATION]
B. Bryan Did Not Have a Right To Refuse To Testify Based on Equal Protection Principles.
Bryan next argues that requiring him to testify violated his equal protection rights because others who are subject to different kinds of civil commitments cannot be compelled to testify. Although Bryan again did not raise this issue below, we exercise our discretion to address it because it raises a pure question of law and does not require the resolution of disputed factual issues. We nonetheless reject Bryan's argument on the merits.
Conservatorship of Bryan S., 42 Cal. App. 5th 190, 194, 255 Cal. Rptr. 3d 195, 199 (2019), review denied (Mar. 11, 2020)
I would contend that when the appellate court in Conservatorship of C.O. cited to the unpublished portion of Conservatorship of Bryan S. to support its issue of the appellate court extending its discretion and hearing issues not raised at the trial court level, it made an error similar to that of counsel in Alicia T. as the court in issuing its opinion relied on (1) a section from a partially published case and (2) used that de published section to support its substantial claims.
Under California Rules of Court, rule 18, when a brief fails to comply with the rules the defective brief may be: (a) returned to counsel for correction and redeposited, (b) ordered stricken with leave to file a new brief within a specified time, or (c) considered as if properly prepared.
I would presume the third option would be the most likely basis for rebuttal if counsel filed for review of the sixth district’s discretion and chooses to rely on this misapplication of the law as grounds for review. Obviously, a writ of mandamus would not be successful but in a perfect world it were, do you think that the California Supreme Court would apply the abuse of discretion standard given that the lower court had made a discretionary ruling (like whether to allowing an unpreserved claim to be heard despite lack of a trial record)? Generally, because abuse of discretion gives the most deference to the lower court, that court’s decision will not be reversed unless maybe there is a finding of "plain error".
USING AFFIDAVIT OF PREJUDICE AND PEREMPTORY CHALLENGES IN LPS CONSERVATORSHIP PROCEEDINGS
Currently LPS Conservatees have a right to six peremptory challenges under Conservatorship of Gordon. However, case law does not account for whether LPS conservatees have a right to file a motion under CCP § 170.6 for disqualification of a judge.
SUMMARY OF CCP § 170.6.
California Code of Civil Procedure § 170.6 allows a party to file an “affidavit of prejudice” to disqualify a judge without an order of proof/to show cause. The affidavit of prejudice cannot be challenged by opposing counsel and the disqualification of the judge is automatic.
Only one peremptory challenge is allowed per side. A peremptory challenge under CCP §170.6 is not the same as a motion to disqualify a judge under CCP §170.1.
CCP § 170.6 may be raised if counsel believes that (1) the bench officer is prejudiced against the conservatee and his or her interest, and (2) that the conservatee cannot have a fair and impartial trial before that bench officer.
Special timelines apply to CCP § 170.6. The three rules fall under the The all-purpose assignment rule, The master calendar rule, and5/10 day rule.
However, LPS Conservatorship proceedings are special proceedings that are quasi criminal- civil proceedings, thus potentially complicating CCP § 170.6 timelines. Counsel could argue that LPS cases fall within the all purpose rule as the posting around MH court rooms state that they are all purpose courtrooms.
CCP § 170.6 has case law establishing its use in the dependency realm. However, no case law exists that explores the options of CCP § 170.6 under LPS statute.
LPS Conservatorship courts are far more limited in resources including bench officers than dependency so the actual application of CCP § 170.6 will be very limited by real life. This is a theoretical exploration of applying CCP § 170.6 to LPS Conservatorship!
PRESENTATION OF THE FACTS
In LPS Conservatorship matters, if the hospital opines that a patient is gravely disabled under Welf & I C § 5008 et seq, the doctor shall submit a petition requesting an LPS Conservatorship investigation begin. The doctor must complete a declaration or affidavit stating the reasons for the recommendation of conservatorship. If the doctor recommends an LPS conservatorship, the proposed conservatee may be held in the facility for up to 3 additional days beyond the 14-day period if the additional time is necessary for completing and filing a petition for temporary conservatorship and for the establishment of the temporary conservatorship by the court. Welf & I C §5352.3. Upon receipt of the doctor’s affidavit, the office of the public conservator shall send out an investigator to determine whether the patient is gravely disabled and in need of a temporary conservatorship.
When the county's conservatorship investigator agrees with the doctor’s recommendation, they must file a petition for an LPS conservatorship. They will ask that the court initiate a temporary conservatorship because involuntary treatment and placement is needed beyond the 14-day period for treatment and the conservatorship investigator is unable to complete their report in that time period.
Most counties will hold an ex parte hearing for the petition for appointment of a temporary conservator relying on the affidavit of the physician due to the time limits. Should the court decide to establish a temporary conservatorship, it may not to exceed 30 days. At the expiration of the 30-day period, the temporary conservatorship expires by operation of law unless the court has held a hearing on whether the proposed conservatee is gravely disabled and ordered a permanent 1 year conservatorship or the temporary conservatorship be extended no longer than 6 months due to a pending jury trial request per Welf & I C §5352.1. All the powers granted to a permanent conservator shall also be granted to a temporary conservator. The public guardian shall serve as the temporary conservator in most counties due to the short duration of the temporary conservatorship.
It is between the T-con and the P-con hearings that counsel could theoretically file a CCP § 170.6 motion and make the legal argument that a temporary conservatorship does not involve a binding judgement on the merits. If the trial court denies conservatee’s motion it could state that it had “made substantive rulings on the temporary conservatorship recently”. The court could state that it had made its temporary conservatorship findings which are the same as substantive findings in a normal case. Given this fact pattern, the conservatee if his motion is denied, he could file a writ of mandate within the deadline and have the court of appeal issue a remittitur ordering the trial court comply with the motion.
PROPOSED LEGAL ARGUMENT
A party may request file an affidavit of prejudice via a 170.6 motion if they raise it (1) within the time limits, (2) a substantive ruling has not been made by that judge, and (3) counsel makes the motion in proper form. Under the earlier fact pattern, conservatee alleges that the trial court committed prejudicial error when it denied their motion under CCP § 170.6.
I. Conservatee’s Motion Was Filed Within the Statutory Deadline
Given the unique time limits of LPS Conservatorship, time limits will not be discussed here. If counsel raises the motion within the time limits and shows that other criteria are met, the bench officer can be immediately disqualified, and a new appointment mandatory.
II. A Temporary Conservatorship is “temporary” lasting no more than 30 days unless exceptions apply
Counsel should recognize that a 170.6 motion filed even within the time deadlines does not end the timeliness inquiry. A timely challenge must be denied if the judge has presided at an earlier hearing which involved a determination of contested factual issues relating to the merits. Grant v. Superior Court, supra, 90 Cal.App.4th at p. 525. However, if that judge has
presided over a pretrial conference or other proceeding not involving a determination of contested fact issues relating to the merits, this fact shall not preclude the motion. Counsel must demonstrate that the ex parte temporary conservatorship hearing did not involve a final judgement on the merits.
Counsel should direct the appellate court’s attention to the fact that temporary conservatorship orders are “temporary” and that a final judgement on the merits is pending further determination at an upcoming hearing; the permanent conservatorship hearing.
When initiating an LPS Conservatorship, an ex parte hearing establishing a temporary 30 day conservatorship precedes either a bench hearing or a jury trial on the issue of whether a 1 year conservatorship is needed. The initial doctor’s declaration and petition are filed with the public conservator before any temporary conservatorship is established. If the investigator concurs with the doctor, then they may petition the court ex parte to establish a temporary conservatorship. A temporary conservatorship may not to exceed 30 days unless the court holds a hearing on whether the proposed conservatee is gravely disabled and orders a permanent 1 year conservatorship or the temporary conservatorship was extended no longer than 6 months due to a pending jury trial. All of the powers granted to a permanent conservator shall be granted during the course of the temporary conservatorship. The public guardian shall serve as the temporary conservator in most counties due to the short duration of the temporary conservatorship. Counsel could rely on these points to demonstrate there is sufficient proof that the ex parte hearing does not entail substantive final judgements on the merits thus permitting the filing of the 170.6 motion.
III. At the Ex Parte Temporary Conservatorship Hearing the Trial Court Did Not Resolve Any Contested Fact Issue Relating to the Merits as there were no evidentiary procedural safeguards.
Conservatee’s counsel must demonstrate that the ex parte temporary conservatorship hearing does not involve a determination of contested fact relating to the merits of the hearing. The trial court can reject a 170.6 motion even if timeliness had been met citing that a timely peremptory challenge must be denied if the judge had presided at an earlier hearing that resulted in a determination of contested factual issues relating to the merits of the case. The trial court could opine that a judgement on the merits had transpired, and a substantive ruling made ordering the appointment of a temporary conservator. However, patient’s counsel could in turn argue that the orders made on record at the temporary conservatorship ex parte hearing were not substantive rulings. During the ex parte hearing, counsel could state that the trial court had not called any witnesses, not called the conservatee, relied on the court investigator’s report, and that no evidence other than the doctor’s initial declaration were presented. During LPS ex parte hearings, the bench officer shall only rely on the doctor’s declaration. Additionally, conservatee was not afforded a chance for cross examination under due process. Counsel could also reason that although Welf & I C is silent on the burden of proof at the ex parte temporary conservatorship hearing, it is presumed to be a lower standard of proof given the lack of formal procedural safeguards. During a temporary conservatorship hearing, the trial court rarely resolves conflicts in the evidence. Given the lack of evidentiary consideration counsel may reason that in determining a temporary conservatorship the judge did not resolve any contested fact issues relating to the merits of the case.
Should patient’s counsel prevail, the appellate court may rule that the trial court’s findings at the ex parte temporary conservatorship hearing were akin to a probable cause finding made at a preliminary detention hearing and counsel was not foreclosed from filing a motion under CCP § 170.6. The temporary conservatorship hearing did not involve the resolution of any contested issue of fact related to the merits and counsel having complied with the procedural prerequisites under CCP § 170.6 shall be entitled to relief via peremptory writ of mandamus in the first instance.
**This case mentions the application of Palma procedure. At this time no information is available regarding how Palma procedure would fit into LPS statutory scheme.
[“(1) the papers before us adequately address the issues raised by the petition; (2) no factual dispute exists; (3) additional briefing is unnecessary, and (4) there is a compelling temporal urgency”.]
Affidavit of Prejudice/ Preemptory challenges* in Dependency Court
Johnny W. v. Superior Ct., 9 Cal. App. 5th 559, 562, 215 Cal. Rptr. 3d 372, 374 (2017)
The department filed a Welfare and Institutions Code § 300 petition alleging that the child was at risk or suffered from abuse or neglect. The next day, the trial court held an initial detention hearing. The father appeared and asked for a continuance to set the matter for contest. The trial court set the hearing for one day out. Counsel agreed to return but stated on the record that “I will not be able, by that time, to hire a social worker, [or] go out and take photographs to represent my case.”
The court opined “that's always the situation when you want a full-blown contested hearing.” It suggested “it might be wiser to set it on a no time waiver basis,” and if counsel needed time to investigate, to then set the matter for a contested jurisdictional/dispositional hearing”.
The court then found there was a substantial danger to the minor's physical and emotional well-being and there were no reasonable means to keep the minor at home with the father and thus made an order removing the minor from Father's custody. Father's filed a declaration and disqualification motion under CCP § 170.6, a peremptory challenge. Father is entitled to only one challenge.
The trial court denied father’s motion citing that it had “made substantive rulings on the detention yesterday”. The court opined that it had made its temporary detention findings which are the same as substantive findings.
Father filed a timely petition to file a writ of mandate. Father contends the trial court erred in ruling that his disqualification motion was untimely. He contends that he filed the motion within the statutory time limits and that the trial court's findings at the initial detention were not substantive findings and thus rendered the court’s argument that based on substantive rulings inapplicable. The appellate court agreed with father and reversed and remanded.
The court of appeal offered its reasoning below:
First and foremost, a motion for disqualification of a judge requires that the movant allege prejudice on the part of the bench officer. However, this allegation is liberally construed in that the court should presume that counsel made this motion in good faith and that an offer of proof evidencing prejudice is not mandatory.
*Motions to disqualify made pursuant to CCP § 170.6 are usually referred to as ‘peremptory challenges. However, they differ from a true peremptory challenge. The court of appeal did not clarify on this statement.
A peremptory challenge under CCP §170.6 is not the same as a motion to disqualify a judge by a party or an attorney, i.e., a challenge for cause (such as personal knowledge or conflict of interest) codified under CCP §170.1.
Under CCP § 170.6, subdivision (a)(2) any party may challenge the assigned bench officer or judge if they believe that the judge is incapable of holding fair and impartial trial or hearing. This section applies to juvenile court cases and LPS Conservatorship. This case deals with dependency only. A party may raise this motion if they raise it in the time limits and in proper form. If they make proper showing, then the bench officer can be immediate disqualified and a new appointment is mandatory. Counsel's declaration in support of the motion closely followed the language of the statute and was thus in proper form.
The father met the other prong, the motion's timeliness. In determining timeliness, the party must show that their case meets one of the three exceptions to the general rule, the ‘10–day/5–day’ rule, the ‘master calendar’ rule, and the “all purpose assignment” rule. Father contends this case falls within the all purpose rule as the posting around the juvenile court rooms state that they are all purpose courtrooms. Additionally, appellant’s motion was timely under the statute's deadlines.
The initial petition in this case was filed on February 7. The first hearing of any kind was held on February 8. Father filed his disqualification motion the very next day, on February 9. A section 170.6 challenge brought a mere two days after the filing of the initial dependency petition is clearly within the statutory deadlines.
However, father noted the other issue that arises even if timeliness had been met; timely peremptory challenge must be denied if the judge had presided at an earlier hearing that resulted in a determination of contested factual issues relating to the merits of the case. Father turns to the orders made on record at the temporary detention hearing in asserting this point. During the detention hearing, the father asserts that the trial court had not called any witnesses and that no evidence other than the social worker’s report were presented. Based on the petition and the report, the court had based its “prima facie showing” and ordered a temporary finding. Father reasoned that the trial court’s written order stating the finding was “temporary ... pending further determination at a continued hearing,” and the simple fact that the matter was continued until February 9 for “Further Detention” is sufficient proof that the hearing did not entail substantive findings. Additionally, given that the trial court set the matter for further proceedings after counsel’s request for continuance further demonstrated that the hearing in question was not final as the trial court would reevaluate the findings at the time of the continued detention hearing. Father also asserts that the burden of proof was very low in that:
“[t]he words “prima facie” mean literally, “at first view,” and a prima facie case is one which is received or continues until the contrary is shown and can be overthrown only by rebutting evidence adduced on the other side”.
The appellate court reasoning that all of these factors demonstrated that father had met all of the necessary criteria under CCP § 170.6 and granted the father’s petition for mandamus.
This case does not fully indicate whether the appellate court ruled in father’s favour in regards to the nature of a normal detention hearing. This appellate court addressed the special circumstances of a continued hearing; however, this court did not address what would transpire under a normal detention hearing. Even after a normal detention hearing, there could technically be a 170.6 motion filed as counsel could cite that a normal detention hearing is a temporary hearing and the next hearing with a substantive ruling would be the jurisdiction/disposition hearing. However, many bench officers may rule that a one-day continuance for a detention hearing is a limited circumstantial situation as there was a one day continuance and it is only temporary detention findings which to many bench officers are the only kind of hearing where temporary findings are made.
Counsel should meet with other counsel or ask a firm director about how their court works but counsel can definitely make a case that normal detention hearings can support a filing 170.6 motion. However, counsel should be ready with notes about the statute and which of the prongs they meet, and the facts of the case supporting their 170.6 motion as many bench officers will reject the motion and ask for deference to legal authority. They may argue that the court already did detention hearing and made its findings, and counsel should have on hand the statue and how the Welf & I C supports that detention hearings are only temporary hearings with no substantive findings on the merits.
9 Cal.App.5th 559
Court of Appeal, First District, Division 1, California.
JOHNNY W., Petitioner, v. The SUPERIOR COURT of San Francisco City and County, Respondent; E.R., et al., Real Parties in Interest. A150579
Synopsis Background: County child welfare agency filed dependency petition. The Superior Court, City and County of San Francisco, San Francisco City and County, No. JD17–3035, Susan M. Breall, J., ordered the child temporarily detained under the care and custody of the agency, approved the child's placement with his mother, and denied father's motion for disqualification of the judge. Father petitioned for writ of mandate.
Holdings: The Court of Appeal held that: 1 temporary detention order did not involve a determination of contested factual issues precluding disqualification of the judge, and 2 juvenile court's findings in support of detention during one-day continuance did not involve a determination of contested factual issues precluding disqualification of the judge.
Juvenile Dependency and