Filed 8/14/23 Conservatorship of S.J. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
Conservatorship of the Person and
Estate of S.J.
S.J.,
Petitioner and Respondent,
v. A164126
F.J.,
(Sonoma County
Objector and Appellant.
Super. Ct. No. SPR86097)
S.J. is a 28-year-old woman who is developmentally disabled. For
several years, her mother F.J. (Mother) and father D.J. (Father) served as
her co-conservators, and S.J. lived primarily with Mother. In 2019, the
Sonoma County Public Defender, on S.J.’s behalf, petitioned for an order
removing the co-conservators and appointing a new conservator, on the
grounds that Mother and Father could not agree on issues related to S.J.’s
placement, to S.J.’s detriment.
In the course of a two-day evidentiary hearing, the court heard
testimony from several witnesses, including Father (who believed it would be
best for S.J. to live in “a quality independent living situation with peers
where she could have friendships and relationships and quality staff”),
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Mother (who believed it would be best for S.J. to continue to live in Mother’s
home, where S.J. had lived for several years), and two experts, one appointed
by the court (who opined that it was in S.J.’s best interest to initiate a slow
transition to living with a group home with three or four others), and one
retained by Mother (who opined that it was in S.J.’s best interest to stay
where she was). The court granted the petitions, based on its findings that
Mother and Father had reached an impasse as to S.J.’s placement despite
several years of effort to reach an agreement; that for S.J.’s sake a decision
should be made; and that it was in S.J.’s best interest to remove Mother and
Father as co-conservators and appoint a new conservator.
Most of Mother’s arguments on appeal raise challenges to the quality of
the evidence concerning the appropriate residence for S.J., in support of
Mother’s position that S.J. should remain in her current home.1 But because
the trial court made no order changing S.J.’s residence, we do not reach those
arguments. The court’s orders removed Mother and Father as conservators
and appointed a new conservator, and that is all. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
S.J. has been diagnosed with severe intellectual disability, cerebral
palsy, and Pitt-Hopkins syndrome, a disorder characterized by developmental
and intellectual delays. She communicates in simple one- to three-word
sentences, and with gestures. Mother and Father have been divorced since
2001, when S.J. was about five years old. From 2001 to 2010, S.J. spent
equal time at each parent’s home, but since 2010 she has lived mostly with
Mother.
1 Father, who is not a party to this appeal, has filed an amicus brief in
support of respondent.
2
A. Original Conservatorship Petition and Order
In October 2013, Mother filed a petition to be appointed the limited
conservator of the person and estate of S.J., then age 18. In the petition,
Mother declared that S.J. was developmentally disabled as defined in Probate
Code section 1420 and required 24-hour assistance for her physical health,
food, clothing, and shelter.2 Father filed an objection requesting that the
court consider his petition for conservatorship or, alternatively, appoint him
and Mother as co-conservators.
In 2014, Mother and Father stipulated to the court’s appointment of
Dr. Daniel Pickar as an expert to evaluate S.J. and determine what form of
care and what care schedule would be in her best interest. In a September
2014 report, Dr. Pickar recommended that Mother and Father have joint
conservatorship, and joint physical custody, with Mother having a somewhat
larger percentage of custodial time. Dr. Pickar further recommended that
between the ages of 22 and 24, but no later than 24, S.J. should “begin living
in an independent assisted living situation.”
In March 2015, Mother and Father attended a judicially supervised
settlement conference at which they agreed to act as co-conservators. A
2 All statutory references are to the Probate Code unless otherwise
stated. The Probate Code defines a “ ‘[d]evelopmental disability’ ” as “a
disability that originates before an individual attains 18 years of age,
continues, or can be expected to continue, indefinitely, and constitutes a
substantial handicap for the individual.” (§ 1420.) And the Probate Code
provides that, “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.” (§ 1801, subd. (d).)
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stipulation and order reciting their agreements was entered in September
2015, and a conservatorship order was issued in October 2015. The
stipulation reflects that Mother and Father agreed on the appointment of a
parenting coordinator to assist in implementing the timeshare schedule they
had adopted, to resolve disputes between them, and to assist the court
investigator in conducting the reviews required by the Probate Code. Mother
and Father also agreed that neither of them would seek to change S.J.’s
residence until she reached the age of 22, while recognizing that the court
retained jurisdiction to change S.J.’s residence at any time upon a finding
that such a change was in S.J.’s best interest.
B. Petition to Remove Co-Conservators
In 2019, the Public Defender of Sonoma County, on S.J.’s behalf, filed
petitions to remove Mother and Father as co-conservators and to appoint
Aprille Rafidison, a professional fiduciary, as successor conservator. Mother
filed written objections to both petitions.
In an amended petition to remove the co-conservators, the public
defender asserted that in 2014 Dr. Pickar recommended that S.J. should
move into an assisted living placement no later than the age of 24; that S.J.
had now turned 24; and that after almost two years of “negotiation and delay
on this issue,” Mother and Father could not agree on who should perform an
evaluation as to her placement. The amended petition further stated that the
disagreement between Mother and Father concerning evaluation and
placement “goes to the heart of what is in [S.J.’s] best interests going
forward”; that further negotiation between Mother and Father would be
futile; and that it was in S.J.’s best interest to remove them as co-
conservators and appoint an objective third party as conservator.
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C. Evidentiary Hearing
An evidentiary hearing on the petitions was held on October 7 and 8,
2021. S.J., as petitioner, was represented by the public defender. Mother
was represented by counsel, and Father was self-represented.
Dr. Lori Pandolfo, a clinical psychologist appointed by the court under
Evidence Code section 730, testified that she was hired “to understand what
is in the best interest of [S.J.] for her living situation both short and long
term.” In preparing her report she reviewed prior reports regarding S.J.;
consulted with three clinical psychologists with extensive experience in the
field of developmental disabilities; interviewed Mother, Father, and people
identified by them as knowing S.J. well; and interacted with S.J. in her office,
in S.J.’s home, at Father’s home, and in the community. Dr. Pandolfo
recommended that S.J. “initiate a slow transition to the community,” based
on her opinions that S.J.’s current situation was not tenable in the long term;
that at present Mother and Father were capable of participating and
providing feedback as to the type of community home that would be
appropriate for S.J.; and that in her present situation S.J. was functioning
below her potential in terms of her activities of daily living and general skill
development, including with respect to toileting, taking medication, and
making choices. She recommended that S.J. transition from living in
Mother’s home to living in a home with three or four other individuals, and
that S.J.’s family and the North Bay Regional Center (Regional Center)
consider the options and choose a placement based on S.J.’s needs and
preferences. She observed that the paid staff who worked with S.J. did
things for her rather than structuring things to teach S.J. or develop her
independence. She testified that a dramatic change in residence following
the death or incapacity of Mother would be “much more detrimental” to S.J.’s
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emotional well-being than a planned, careful transition to the community.
She testified that given S.J.’s level of disability, the older she gets, the less
capable she will be of developing independence and making a transition to a
different residence. In her report, Dr. Pandolfo stated that she learned
“[f]rom numerous sources” that Mother and Father have had “significant
challenges communicating and agreeing on [S.J.’s] care,” and that “usually
there has not been compromise and decisions have needed to be made
through litigation.”
Dr. Jon Bathori, a clinical psychologist retained as an expert by
Mother, testified that he was asked “to assess the situation of [S.J.],” and
that in his opinion, S.J. was receiving the best possible care where she was
and should not be moved from Mother’s residence. In preparing his report he
reviewed prior expert reports, including Dr. Pandolfo’s; consulted with a
colleague; interviewed mother; and saw S.J. over the internet with Mother for
30-45 minutes. Dr. Bathori testified that he “not infrequently” did
assessments for placements when a person with cognitive issues has been
supported by their family and the family dies or becomes incapacitated. He
believed that families ought to have plans to address those situations, but
most families did not. He testified that there was no need to plan a
transition for S.J. because Mother said her plan is to keep S.J. at her home
whether Mother is alive or not.
Father testified that he and Mother shared custody on a 50-50 basis,
but recently S.J. had been unable to stay with him because of the pandemic
and because his wife A.J., S.J.’s stepmother, was undergoing treatment that
left her immune compromised. So Father would take S.J. out for lunch or
dinner, usually on Sundays. Father testified that it was challenging for him
to physically care for S.J. because he had a neuromuscular condition which
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affects his extremities, and he prefers having a caregiver with him when he is
with S.J. Father said he believed that the best living situation for S.J. would
be a “quality independent living situation with peers where she could have
friendships and relationships with quality staff,” somewhere in Sonoma
County, where Father and Mother both live. He testified he has held this
belief since S.J. was in elementary school, when a teacher told him that S.J.
would not catch up with her classmates, that S.J. would need help for the rest
of her life, and that the teacher had believed S.J. would be better off in a
group home based on the teacher’s observation of situations with divorced
parents, where the stress and strife between them would affect the child.
Mother, however, was not in agreement. Father testified that Mother is
generally cooperative when Father wants to see S.J., but he is not allowed to
go inside Mother’s house and see where and how S.J. lives. And he testified
that although Mother generally kept him informed on S.J.’s day to day
activities, she failed to provide him with notice of meetings and reports from
the Regional Center. He believed that Mother had left S.J. with caregivers
who are trained only to clean houses, which had the potential of harming S.J.
He believed that S.J. needed to be living in a situation with round-the-clock
quality support; that S.J. is capable of doing more than she currently does;
that S.J. would benefit from being treated as an adult with special needs
rather than as a child; that because S.J. enjoyed social interaction she would
benefit from living with other girls or women on a routine basis; and that S.J.
would benefit if both her parents could see her at any time without
restrictions. He believed S.J. was aware of the conflict between her parents,
which was reflected in her wanting to stay with him after visits rather than
return home. Father also testified that he was concerned that Mother
wanted to have S.J. live with her until Mother dies, and that upon Mother’s
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death there would be enormous stress on S.J., with the Regional Center
taking over to place S.J. somewhere without “the same level of desire or care
or responsibility” as S.J.’s family to make sure S.J. is in a “safe, quality,
positive situation.”
Mother testified that she is 71 years old and in good health. She is a
registered physical therapist, with certification in hippotherapy, which is
treatment that uses the movement of a horse to regulate the nervous system,
and improve balance, coordination, and strength. She operates a facility
focused on helping children and adults with physical, emotional, and learning
disabilities through therapeutic riding. She testified that she encourages S.J.
to make choices throughout the day, and that S.J. sometimes chooses what to
wear and sometimes dresses herself. Over time, S.J.’s ability to speak and
walk has improved. Mother testified she is working with SJ. on dressing
herself and toileting, and that S.J. participates in a life skills program
through the Regional Center five days a week, six hours a day. She testified
that she believed S.J. was thriving and happy in her home, and that S.J. had
freedom that she would not have in another setting. She testified that she
was concerned about placing S.J. in a group home because she has worked in
group homes as a physical therapist and is aware of high turnover of staff,
the potential for abuse and neglect of residents, and the displacement of
residents when a house is sold. And she did not believe S.J. would get the
same level of attention as she does in Mother’s home. Mother testified that
she would not allow Father to come into her home because 21 years earlier,
after the divorce, she had invited him to see where she was moving and she
felt that Father was judging her, which made her uncomfortable. The only
two occasions on which Mother offered to allow Father inside to see S.J.’s
room was once when Father came with his mother and once a few months
8
before the trial when Mother offered to allow him in if he would drop the
lawsuit.3 Mother testified that she thought it would be “ideal” for her and
Father to work out a defined plan for S.J.’s care in the event Mother becomes
unable to care for S.J., but no such plan had been made. She wanted S.J. to
continue to live at her house even after her death, and thought there were
ways of arranging for that. Asked what she thought would happen when she
was no longer alive to make payments on the house where she lived, she
testified that she thought her estate and Father or Father’s estate would
have “input into [S.J.’s] care and disposition” and would “work that . . . out.”
Danielle Gilardi, a marriage and family therapist, testified that she
interned at Mother’s therapeutic riding facility in 2011 and periodically
watched S.J. as a caregiver from then until the start of the COVID pandemic,
providing care during the day or evening, and once overnight. In the few
years immediately preceding the pandemic, she would care for S.J. about
once a month. She testified that Mother was “very able” to care for S.J., and
provided S.J. a loving and structured environment, and that S.J.’s speech and
social skills improved from 2011 to 2020.
Amanda Prestyly-Belka, a registered nurse specializing in pediatrics,
works as a therapeutic riding instructor at Mother’s facility. She testified
that she regularly sees S.J. at the facility, and gives S.J. riding lessons and
hippotherapy sessions. She stated that S.J. has an active social life in the
community of people who come to the facility, and that S.J.’s social, speech,
and physical skills have improved over the years. She believed that if S.J.
was placed in the immediate area, she could still participate in the horse
3 Father testified that when Mother made this offer, he explained that
he was not bringing the suit.
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facility programs, but thought that S.J. would miss the community she was
accustomed to, and would not thrive as much as where she is now.
Dr. Lorna Catford, who had retired as the director of the psychology
internship program at Sonoma State University, testified that she had
supervised students who worked at Mother’s therapeutic riding facility, and
first met S.J. about 20 years ago. In recent years, she generally saw S.J.
about six times a year. She testified that over the years she has observed S.J.
interacting with people at Mother’s home, at religious school classes (which
were attended by S.J. and Dr. Catford’s daughter), and at events around the
county, and that she had observed S.J.’s social and physical abilities to have
improved over time.
Christopher Dunham, a riding therapist who has been employed at
Mother’s therapeutic riding facility for five years, testified that he saw S.J. at
the barn several times a week, that S.J. had good relationships with him and
other staff and with volunteers at the barn, and that over the past few years
he had observed improvements in S.J.’s language skills, social skills, and
physical abilities, including her horse riding skills.
Father’s wife, A.J., testified that she had been S.J.’s stepmother for 19
years, and had a close bond with her. For a number of years, S.J. lived in
Father and A.J.’s home half the time, and A.J. regarded S.J. as her daughter.
She characterized S.J. as an energetic, vibrant young woman with
considerable emotional intelligence. She testified that S.J. was very sociable
and “loves everybody.” She testified that she felt S.J. needed round-the-clock
assistance with things like dressing and toileting, but most important she
needed supervision, because she does not know what is dangerous and what
is not. A.J. believed it was important to make detailed plans for S.J. while
she and Father and Mother were alive and well; she was concerned that there
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were no contingency plans for Mother’s death or incapacity; and she was
troubled at the thought that S.J. might remain in Mother’s home without
Mother, and without any plans having been made for who would take care of
her.
At the close of the hearing, the court stated that it envisioned three
possible outcomes: the petitions could be denied, leaving Mother and Father
as co-conservators, with no resolution as to placement; the petitions could be
granted, removing both conservators and appointing a third-party
professional fiduciary; or Mother and Father could remain co-conservators
subject to an order to start a transition by a certain date and complete it,
with frequent reports to the court on the status of the transition. The court
took the matter under submission, and, as we shall see, ultimately chose the
second option.
D. Orders and Appeal
On October 22, 2021, the court issued a written judgment and orders
granting the petitions.4 At the outset, the court noted that Mother and
Father “have done an outstanding job raising this young adult. They
overcame many challenges, including interpersonal communication issues, to
keep the best interest of [S.J.] as their focus.” The court found that it was the
strong recommendation of “[e]xperts serving in the field that have experience
with [S.J.’s] disability” that S.J. should “be placed in the greater community
after participating in a robust transition living plan.”
The court then reviewed the expert testimony, stating that the court-
appointed expert, Dr. Pandolfo, who had conducted “a very comprehensive
and deep evaluation” recommended S.J. be placed in the greater community
4 In its order, the trial court incorrectly referred to D.J. as the
petitioner.
11
after the execution of a “comprehensive transition living plan,” and that the
transition should begin without delay because delay could be detrimental to
S.J.’s development and delay could also mean that S.J.’s parents could not
“participate robustly” in the transition. The court also noted that in 2014 Dr.
Pickar had suggested that S.J. undergo a transition living plan by the time
she was 22.
The court acknowledged the testimony of Mother’s expert, Dr. Bathori,
who testified that S.J. “is fine where she lives and doing very well,” but the
court noted that Dr. Bathori did not conduct personal visits with anyone
other than S.J. and Mother, which was by remote technology, and that he did
not interview Father or others, nor observe S.J. in her daily activities.
The court found that Mother and Father had reached an impasse with
regard to S.J.’s placement, with Father in favor of the recommendation that
S.J. participate in a transition to a community setting and Mother opposed to
it.5 The court concluded, “It is time for a decision for [S.J.’s] sake. [¶] Upon
5 The court’s order stated that the Regional Center supported and
recommended a transition to a community setting, but there is no evidence in
the record to support this statement. The Regional Center had filed a report
in response to the petition for appointment of a successor conservator, stating
that it saw no reason why a successor limited conservator should not be
appointed, and that it had no objection to the appointment of Rafidison as
successor limited conservator, but there is no indication that it filed any
report or opinion concerning S.J.’s placement, and there was no testimony at
trial from any employee or representative of the Regional Center. Dr.
Bathori testified that S.J.’s caseworker at the Regional Center told him that
that the Regional Center “didn’t want to offer anything by way of opinion
that could get dragged into the conflict”; that the Regional Center “was quite
happy where [S.J.’s] at and had no criticisms or complaints about” Mother;
and that as a general matter the Regional Center was “happy to support
parents having a child live in their home” and would “follow the lead of
parents and their preferences.”
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hearing and reviewing all of the evidence in this matter, the Court finds that
it is in the best interests of [S.J.] for the co-conservators of the limited
conservatorship [to] be removed and that a new conservator of the limited
conservatorship be appointed.”
The court granted the petitions, removing Mother and Father as co-
conservators and appointing Aprille Rafidison as successor conservator.
Mother timely appealed.6
DISCUSSION
A conservator may be removed by the court for any of several
enumerated causes, and “[i]n any other case in which the court in its
discretion determines that removal is in the best interests of the . . .
conservatee.” (§ 2650, subd. (j).) We review an order removing a conservator
under section 2650 for abuse of discretion. (See Guardianship of Davis (1967)
253 Cal.App.2d 754, 761 [whether there is sufficient cause to remove a
guardian “is a question of fact to be determined in the broad discretion of the
trial judge, whose determination will not be disturbed except upon a showing
of manifest abuse of discretion”].) We will not find an abuse of discretion
unless “under all the evidence, viewed most favorably in support of the trial
court’s action, no judge could have reasonably reached the challenged result.”
(Conservatorship of Scharles (1991) 233 Cal.App.3d 1334, 1340.)
6 We took under submission for decision with the merits, and now deny,
Mother’s request that the record on appeal be augmented to include a
“Determination of Conservatee’s Appropriate Level of Care,” signed by
Aprille Rafidison on August 3, 2022, more than nine months after entry of
the order challenged in this appeal. (Vons Companies, Inc. v. Seabest Foods,
Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [“[a]ugmentation does not function to
supplement the record with materials not before the trial court” at the time
the challenged judgment or order was entered].)
13
On appeal, Mother argues at length that the trial court erred in finding
that S.J. “should be removed from her personal residence and lifestyle and
placed in the greater community.” We do not address those arguments,
because the trial court made no such finding. Although the court’s order
discussed the experts’ recommendations concerning whether S.J. should
transition to living in the broader community, and discounted Dr. Bathori’s
recommendation as being based on limited observations, the court did not
find that S.J. should be removed from her current residence, nor did the court
make any orders concerning a transition plan. And in its December 6, 2021
order appointing Rafidison as successor conservator of the limited
conservatorship of the person and estate of S.J., the court granted Rafidison
the power to fix S.J.’s residence or specific dwelling, without any limitation or
requirement regarding a transition from Mother’s home. We view the trial
court’s discussion of the expert opinions as providing support for its finding
that it was in S.J.’s best interest for a decision to be made about her
placement and that a third-party successor conservator, rather than Mother
and Father, should make the decision.
As to the actual issue before us, which is the removal of Mother and
Father as co-conservators, Mother argues briefly that the record does not
support a finding by clear and convincing evidence that she should be
removed as conservator. We do not find this persuasive. First, Mother
provides no authority to suggest that the clear and convincing standard of
proof has any bearing on the question whether to remove a conservator.7
7 In her briefs, Mother states that the presumption that the
conservatee’s personal residence is the least restrictive appropriate residence
must be overcome by clear and convincing evidence, as set forth in section
2352.5, subdivision (a). Section 2352.5, subdivision (a), does not apply in this
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Second, the argument rests on an incorrect premise. Mother contends that
she was removed as conservator because she believes it is in S.J.’s best
interest to remain where she is, arguing that she should be S.J.’s sole
conservator so that S.J. can “maintain her current personal residence and
lifestyle.” Mother disregards the fact that both she and Father were removed
as conservators, and that they were removed because they could not agree on
a fundamental issue concerning the well-being of S.J., namely, on where she
should reside. The significance of Mother’s belief concerning S.J.’s placement
is that her belief is irreconcilable with Father’s belief that S.J. should
transition to an assisted living facility, and that after years of negotiation,
Mother and Father could not reach an agreement.
In arguing that she should be S.J.’s sole conservator and that her
wishes as to S.J.’s placement should prevail, Mother does not dispute that
she and Father have reached an impasse on the issue of S.J.’s placement
after years of discussion and negotiation. And Mother does not dispute that
it is in S.J.’s best interest that there should be a resolution to the impasse: it
is Mother’s position that the resolution should be that her view prevails. In
her briefs on appeal, Mother does not dispute the trial court’s finding that
there is an impasse that requires a resolution, nor does she dispute that
there is ample evidence to support that finding, on which the court based its
decision. We see no basis to find that the trial court abused its discretion in
removing co-conservators and appointing a successor conservator, where, as
here, there is a long-standing and irreconcilable disagreement between the
co-conservators on a fundamental issue affecting the conservatee’s well-being.
appeal because, as we have explained, the trial court did not order any
change in S.J.’s residence.
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DISPOSITION
The challenged orders are affirmed. Respondent shall recover any costs
on appeal.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Markman, J.*
A164126, S.J v. F.J./Conservatorship of S.J.
* Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
17