Filed 1/12/16 Conservatorship of the person of E.M. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
Conservatorship of the Person of E.M.
M.M.,
G050405
Petitioner and Appellant,
(Super. Ct. No. 30-2011-00488602)
v.
OPINION
KEVIN G. SMITH, as Public Guardian,
etc.,
Objector and Respondent.
Appeal from an order of the Superior Court of Orange County,
Jamoa A. Moberly, Judge. Affirmed.
M.M., in pro. per., for Petitioner and Appellant.
Nicholas S. Chrisos, County Counsel, and Robert N. Ervais, Deputy
County Counsel, for Objector and Respondent.
* * *
I. Introduction
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In September 2012, the Orange County Public Guardian (Respondent) was
appointed conservator of the person of E.M., a developmentally disabled adult, pursuant
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to Probate Code section 1801, subdivision (d). E.M.’s mother, M.M. (Mother), appeals
from an order, made in June 2014, denying her petition to remove the conservator or, in
the alternative, to terminate the conservatorship over E.M. We affirm the order because
Mother has not presented a record overcoming the presumption of correctness and
affirmatively proving error.
In a companion case (appeal No. G051138), Mother appeals from an order
restricting her visitation with E.M. to monitored visits. That appeal is covered in a
separate opinion.
II. Facts and Procedural History
A. The Conservatorship Petition
E.M. is the daughter of Mother and her ex-husband, B.M. (Father). E.M.
has been diagnosed with autism, attention deficit disorder, mental retardation,
obsessive-compulsive disorder, psychosis, depressive disorder, and anxiety disorder. In
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In September 2012, the public guardian was Lucille Lyon. Appearing as Respondent
is Kevin G. Smith, who was appointed interim public guardian in March 2014.
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Probate Code section 1801, subdivision (d) states: “A limited conservator of the
person or of the estate, or both, may be appointed for a developmentally disabled adult.
A limited conservatorship may be utilized only as necessary to promote and protect the
well-being of the individual, shall be designed to encourage the development of
maximum self-reliance and independence of the individual, and shall be ordered only to
the extent necessitated by the individual’s proven mental and adaptive limitations. The
conservatee of the limited conservator shall not be presumed to be incompetent and shall
retain all legal and civil rights except those which by court order have been designated as
legal disabilities and have been specifically granted to the limited conservator. The intent
of the Legislature, as expressed in Section 4501 of the Welfare and Institutions Code, that
developmentally disabled citizens of this state receive services resulting in more
independent, productive, and normal lives is the underlying mandate of this division in its
application to adults alleged to be developmentally disabled.”
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April 2012, court-appointed counsel for E.M. filed a petition under Probate Code
section 2351.5 (the Conservatorship Petition), seeking a limited conservatorship of the
person and requesting that Respondent be appointed conservator. When the
Conservatorship Petition was filed, E.M. was 19 years old and living in a regional center,
level IV, adults-only, home with several other special needs adults.
The Conservatorship Petition alleged that E.M. is an adult, is “unable to
properly provide for . . . her personal needs for physical health, food, clothing, or
shelter,” “has no understanding as to housing, medical treatment, finances or financial
record keeping,” and “is gravely impaired in a number of areas,” including the ability to
make purchases, enter into simple contracts, keep financial records, and make decisions
on medical issues. “[D]ue [to] the grave disabilities of [E.M.], with onset during her
early minority, [E.M.] will be unable to understand real world situations and will be
unable to be transitioned into an independent living program, either now or at any[]time
in the future.” According to the Conservatorship Petition: “[T]he current placement of
[E.M.] is the least restrictive environment for [her], considering the nature and extent of
her profound disabilities. . . . [E.M.] appears to be doing well in her adjustment to this
placement.”
In 2011, Mother had filed a petition to have herself appointed conservator
of E.M. Father likewise had filed a petition to have himself appointed conservator of
E.M. The relationship between Mother and Father was “hostile” and “acrimonious.”
The Conservatorship Petition alleged that Mother “is not capable of making
decisions that are appropriate for [E.M.], often expressing unrealistic expectations for
[E.M.], and making demands for performance that are unobtainable in the opinion of
other professionals familiar with the case.”
The trial court conducted an evidentiary hearing in September 2012, at
which Mother and Father, among others, testified, and various investigative reports and
reports from the regional center were received in evidence. At the conclusion of the
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hearing, the court appointed Respondent as limited conservator of the person of E.M. and
granted Respondent various powers under Probate Code section 2351.5. The court
denied Mother’s petition for appointment of conservator and dismissed Father’s petition
for appointment of conservator. Letters of conservatorship were issued on September 20,
2012.
B. Mother’s Petition to Remove the Conservator
In June 2013, Mother filed a petition to remove the conservator, in which
she made various allegations of wrongdoing against Respondent. She alleged that in June
2012, Respondent (who at that time was John S. Williams) had been accused by the
Orange County Board of Supervisors of fraud and mismanagement. Mother alleged the
conservatorship “imprisoned and isolated” E.M. in a “jail-like residential facility for life
without parole,” where she would be used as a “guinea pig to experiment with new drugs
for the purpose of receiving kick backs from pharmaceutical companies.”
(Capitalization, boldface, & underscoring omitted.) Mother sought to have herself
appointed conservator of E.M. in place of Respondent.
A hearing on Mother’s petition to remove the conservator was conducted in
June 2014. After hearing an opening statement from Mother and testimony from E.M.’s
court-appointed attorney, the court found that a limited conservatorship continued to be
necessary and that “insufficient evidence was presented.” The court denied Mother’s
petition to remove the conservator and ordered that visitation continue to be monitored.
Mother filed a notice of appeal from the order denying her petition to remove the
conservator.
III. Discussion
Respondent initially argues that Mother’s opening brief must be rejected
outright because it includes no record citations or meaningful legal analysis. Mother’s
opening brief does not comply with California Rules of Court, rule 8.204(a)(1)(C), makes
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what appears to be extreme and unsupported arguments, and restates much of the
allegations made in Mother’s petition to remove the conservator. Although a
self-represented litigant is held to the same rules as an attorney (Rappleyea v. Campbell
(1994) 8 Cal.4th 975, 984-985), due to the nature of this matter, we exercise our
discretion and consider the appeal on the merits.
Probate Code section 1801, subdivision (d) authorizes the appointment of
“[a] limited conservator of the person or of the estate, or both,” for “a developmentally
disabled adult.” Probate Code section 2351.5, subdivision (a)(1) provides that “[t]he
limited conservator has the care, custody, and control of the limited conservatee,” but
does not have other powers unless expressly granted under section 2351.5,
subdivision (b).
A court’s decision to appoint a conservator is reviewed for substantial
evidence. (Conservatorship of Ramirez (2001) 90 Cal.App.4th 390, 401.) “In making
that determination, we view the entire record in the light most favorable to the trial
court’s findings. [Citations.] We must resolve all conflicts in the evidence and draw all
reasonable inferences in favor of the findings. [Citation.] Substantial evidence is
evidence of ponderable legal significance. [Citations.]” (Ibid.)
We have no record of the proceedings on the hearing on Mother’s petition
to remove the conservator except for the court’s minute order denying the petition. That
order is presumed correct, all intendments and presumptions are indulged in favor of its
correctness, and Mother, as the appellant, bears the burden of providing a record
affirmatively proving error. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133;
Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Denham v. Superior Court (1970) 2
Cal.3d 557, 564.) Mother has not procured a reporter’s transcript, or suitable substitute,
of the hearing on her petition to remove the conservator and therefore has not met her
burden of proving error. (See Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039.)
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IV. Disposition
The order denying Mother’s petition to remove the conservator is affirmed.
In the interest of justice, each party shall bear his or her own costs.
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
IKOLA, J.
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