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
Juvenile Dependency and