SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES v. LARSON (1989)

Conservatee Theresa Larson appeals a jury verdict finding her gravely disabled by reason of a mental disorder within the provisions of the Lanterman–Petris–Short (LPS) Act (Welf. & Instit.Code ¹ , §§ 5350 et seq.).  Larson contends the court erred 1) in depriving her of her right to a unanimous jury determination regarding the availability of third party assistance;  2) in refusing to instruct the jury on the appropriate circumstantial evidence standard;  and 3) in refusing her request for a jury instruction that she is presumed not gravely disabled until the contrary is proven.   We conclude the court's instruction to the jury there was no third party available to assist Larson was justified by the lack of evidence on that issue.   We further conclude the court erred in refusing the requested jury instructions but determine those errors to be harmless.

FACTUAL AND PROCEDURAL BACKGROUND

Public conservator Richard J. Thomson filed a petition to reestablish the conservatorship of the person of Theresa Larson, alleging Larson was still gravely disabled.   After hearing, the court found Larson was gravely disabled and reappointed the public conservator.

Larson demanded a jury trial.   At trial, the San Diego County Department of Social Services (County) presented circumstantial evidence through the testimony of a clinical psychologist who performed an evaluation of Larson in November 1987.   He saw Larson again in February and March 1988, as well as on one occasion in court.   The evaluation process took approximately 45 to 55 minutes.   Relying primarily on the notes and records of others, the psychologist described Larson as having symptoms of hearing voices of people telling her to do certain things, including to harm herself.   She also exhibited behavior problems such as inserting foreign objects like paper clips and wires into her body.   The psychologist described instances in which Larson required timeouts or seclusion, in which she had assaulted staff members, in which she required restraints for a period of two months, and in which she required a transfer to another unit with more direct supervision.   He related an incident of self-mutilation in which Larson inserted a wire through her abdomen requiring surgical removal.   He also testified to Larson's assault with a knife or a piece of metal on another patient resulting in criminal charges being initiated against her.

Based on the reports of others and his own evaluations, the psychologist testified Larson had a mental disorder known as schizoaffective disorder.   He did not believe Larson could commit herself to voluntary treatment or care for herself.   He stated Larson required ongoing medication without which she would decompensate, and noted she had refused medication on one recent occasion.   He testified Larson has no rational plan to care for herself and had been hospitalized since she was six years old.   The psychologist related two prior placements in a board and care facility lasting one day each.

Larson testified in considerable detail that she was taking her medication and even asked for it when needed.   She testified regarding her treating physicians, her living accommodations, her meals, her clothes and her belief she could presently handle a board and care facility.   When asked if she had someplace to live if found not gravely disabled, Larson responded:

“A. Yes, I do.

“Q. Where is that?

“A. It's a board and care, state licensed, eight bed.   From what I understand all persons are—have mental problems and some of them are under conservatorship.

“Q. Who made those arrangements?

“A. My attorney, Roy Short.

“Q. And you're willing and ready to go there now?

“A. Yes, I am.”

Larson further testified she would participate in a day program, would take her medication and would continue to see a doctor or psychologist.   She admitted having a mental problem.   As to the alleged violent incident, she testified she did not strike anyone with a sharp object, but instead hit him with her hands and feet.   She stated she tried to get staff help at the time, but no one would help her.   The charges were later dropped.

On cross-examination, Larson testified she had been turned down by a board and care facility because of her past behavior, which included setting a fire.   She stated she had discussed a board and care facility with her social worker who told her she would have to behave almost perfectly before she could even be considered for board and care.   Larson also testified she had been in a board and care facility called Magnolia Cottage in El Cajon four to five years ago.   She stated her stay there lasted eight months and explained why she was removed from the facility.

In his closing argument, Larson's attorney told the jury:

“[Larson] testified about a board and care that is a state-licensed facility.   She said it had eight beds.   It has people there that are mentally ill people and her attorney arranged for her to go there.   She could go there now.   You asked her what the name is and she said she trusts her attorney;  and she should.   There is a place for her to go, you heard her testify to it.   That's what she want[s] to do.

“․

“The legal problems are whether she's got a mental disorder, which we admit;  and second, can she provide food, clothing and shelter, not necessarily on her own but with aid or assistance of a responsible third person or entity, and there is a third person available.”

The trial court instructed the jury as follows:

“If the evidence indicates that a family member, friend or third party has offered and is available to assist Theresa Larson in providing her food, shelter or clothing you must determine whether that person is responsible and is willing to assist Theresa Larson.   If you find that Theresa Larson can survive safely in freedom by herself or with the help of this available, willing and responsible family member, friend or other third party then you must find that Theresa Larson is not gravely disabled.”

Other than Larson's testimony regarding a board and care facility, no evidence was before the jury as to any family member, friend or third party.

During deliberations the jury sent a note to the court, asking, “Is there a third person or family member or friend that will be helping her in any way if found not Gravely Disabled?” ²  Larson's trial counsel requested the court respond by instructing the jury the determination of this issue was for the jury to make.   County counsel argued that because no specific names were mentioned at trial, the response to the jury's question should be there is no third person available.   The court informed counsel it did not consider a board and care facility a person and responded to the note as follows:  “There is no third person or family member or friend that will be helping her in any way.”   The jury found Larson gravely disabled.

DISCUSSION

I

Larson contends the court erred in depriving her of her right to a unanimous jury determination regarding the availability of third party assistance.   She asserts the court, in telling the jury “[t]here is no third person or family member or friend that will be helping her in any way,” erroneously withdrew from the jury's consideration critical evidence of assistance.   Larson further contends a board and care facility can be an interested third party for purposes of assisting a proposed LPS conservatee.

A

Mental illness cannot be defined precisely even by the medical community;  instead, the legislature requires a trier of fact find a person “gravely disabled.”   The legislature has not defined the precise criteria to be used by the trier of fact in making this finding.   As in other kinds of proceedings, the courts have been left to ascertain the intention of the legislature on a case-by-case basis.

In Conservatorship of Early (1983) 35 Cal.3d 244, 197 Cal.Rptr. 539, 673 P.2d 209, the California Supreme Court resolved a conflict in appellate decisions (Conservatorship of Buchanan (1978) 78 Cal.App.3d 281, 144 Cal.Rptr. 241;  Conservatorship of Davis (1981) 124 Cal.App.3d 313, 177 Cal.Rptr. 369;  Conservatorship of Wilson (1982) 137 Cal.App.3d 132, 186 Cal.Rptr. 748) as to whether a proposed conservatee had to be found by a trier of fact to be able to care for himself or herself without the assistance of a willing and responsible family member, friend or other third party.   The court held the proposed conservatee had no such burden.  (Conservatorship of Early, supra, 35 Cal.3d at pp. 254–255, 197 Cal.Rptr. 539, 673 P.2d 209.)   The Supreme Court specifically overruled a contrary conclusion reached by the court in Conservatorship of Buchanan, supra, 78 Cal.App.3d at p. 289, 144 Cal.Rptr. 241.   It is no longer sufficient for a trier of fact to determine a person cannot care for himself or herself even for basic necessities.

 There are two requirements for a finding of grave disability:  1) that a person, as a result of a mental disorder, is unable to provide for his or her basic needs of food, clothing or shelter;  and 2) that there is no willing and responsible family member, friend or third party available to assist in providing the proposed conservatee with such food, clothing and shelter.  (Conservatorship of Early, supra, 35 Cal.3d at p. 254, 197 Cal.Rptr. 539, 673 P.2d 209.)   Thus, the court properly instructed the jury it must find Larson was not gravely disabled if it found she could survive safely in freedom by herself or with the help of an available, willing and responsible family member, friend or third party.

B

 In response to the jury's question whether there was a third party who would be helping Larson, the court stated, “There is no third person or family member or friend that will be helping her in any way.”   Larson contends the court, after properly instructing the jury on the requirements for a finding of grave disability, erroneously removed that issue from the jury's consideration by telling them there was no third party responsible and willing to assist her.

“[T]he trier of fact on the issue of grave disability must consider the availability of third party assistance to meet the basic needs of the proposed conservatee for food, clothing or shelter only if credible evidence of such assistance is adduced from any source at the trial of the issue.”   (Conservatorship of Early, supra, 35 Cal.3d at p. 254, 197 Cal.Rptr. 539, 673 P.2d 209.)   Larson presented no credible evidence that a family member, friend or third party was responsible and willing to assist her in providing her food, clothing and shelter.   The evidence of third party assistance consisted solely of Larson's testimony an unnamed board and care facility existed and arrangements for her placement there had been made by her attorney.   Because there was no credible evidence a willing and responsible family member, friend or third party was available to assist Larson, the court properly responded to the jury's inquiry.

II

Our conclusion the evidence here was insufficient to support a finding the board and care facility alluded to by Larson was a responsible and willing third party should not be interpreted to mean that, as a matter of law, a board and care facility can never be considered a willing and responsible third party for purposes of the LPS Act.   A board and care facility has been defined as “a step above boarding [houses] and just below nursing homes, which are also known as convalescent hospitals or skilled-nursing facilities.   Board-and-care homes shelter residents who cannot live on their own.   There are three major resident groups:  the mentally retarded, the mentally ill and the elderly.”  (See Hedgecock & Hanner Caring for the Unwanted (Nov.1988) Cal.J. 491, 494.)

 County cites Conservatorship of Law (1988) 202 Cal.App.3d 1336, 249 Cal.Rptr. 415 for the proposition that a board and care facility may never be considered a responsible third party.³  We do not read Law to so hold.   In that case the conservatee, Law, had already been placed in a board and care facility as a result of a finding she was gravely disabled.   The evidence was uncontradicted Law did not believe she had a mental disability, her family would not take her in, and she had recently refused treatment.   On appeal, Law argued that because she had been placed in a board and care facility by her conservator, she was utilizing the assistance of family members, friends or third parties, and thus she was not gravely disabled.   This court rejected that argument stating, “Following Law's logic, a proposed conservatee could never be found gravely disabled in a reestablishment situation because the conservator is a willing and responsible other third party assisting the conservatee and providing for his or her needs.   This could not have been the legislative intent for it would nullify Welfare and Institutions Code section 5361 permitting reestablishment of the conservatorship.”  (Id. at p. 1341, 249 Cal.Rptr. 415.)

Here, in contrast, Larson does not argue her conservator is a willing and responsible other third party, but instead contends there is a board and care facility to which she can go which qualifies as an interested third party.   We did not reach the issue in Law of whether a board and care facility is such a “third party.”

Rather than define what constitutes a willing and responsible third party in the context of LPS proceedings, we instead hold such third party can include, among others, community agencies and board and care facilities.   It is for the trier of fact to determine if the family member, friend or third party is willing to assist and is responsible.   We have found no case specifically addressing this issue.   However, we are offered guidance by the United States Supreme Court's discussion in O'Connor v. Donaldson (1975) 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396.   In reviewing offers of assistance made to the proposed conservatee, Donaldson, the court stated he “had been supported by responsible persons willing to provide him any care he might need on release.   In 1963, for example, a representative of Helping Hands, Inc., a halfway house for mental patients, wrote ․ asking him to release Donaldson to its care.”   (Id. at p. 568, 95 S.Ct. at p. 2490.)

In Conservatorship of Early, supra, 35 Cal.3d at page 252, 197 Cal.Rptr. 539, 673 P.2d 209, the court noted that a 1976 amendment deleting the word “unassisted” from Probate Code section 1751 was recognized as a direct response to the 1975 decision in O'Connor.   The Early court stated, “We similarly conclude it represents a legislative recognition that trial courts must examine the willingness and ability of third persons to assist the proposed ward or conservatee before imposing an involuntary confinement under the Probate Code.   Section 5350 imports this reasoning to the conservatorship provisions of the Welfare and Institutions Code․  [¶ ] [I]mposition of a conservatorship should be made only in situations where it is truly necessary.   To accomplish this purpose evidence of the availability of third party assistance must be considered.  [Citations omitted.]”  (Id. at pp. 252–253, 197 Cal.Rptr. 539, 673 P.2d 209.)   The court further concluded “the definition of the phrase ‘gravely disabled’ as a condition in which the person is ‘unable to provide for his basic personal needs for food, clothing or shelter ․’ [citation omitted] ․ was intended to encompass a consideration of whether the person could provide these basic needs with or without the assistance of willing and responsible family members, friends, or other third parties.”   (Id. at p. 254, 197 Cal.Rptr. 539, 673 P.2d 209.)

In O'Connor, a third party included a corporation.  (O'Connor v. Donaldson, supra, 422 U.S. at p. 568, 95 S.Ct. at p. 2490.)   In Buchanan, the proposed jury instruction set forth as examples of willing and responsible offers of assistance “relatives, friends, community agencies, and board and care facilities.”  (Conservatorship of Buchanan, supra, 78 Cal.App.3d at p. 289, fn. 7, 144 Cal.Rptr. 241.)   Similarly, the opinions in Davis and Wilson refer to a broad category of “other resources.”  (Conservatorship of Davis, supra, 124 Cal.App.3d at p. 324, 177 Cal.Rptr. 369;  Conservatorship of Wilson, supra, 137 Cal.App.3d at p. 135, 186 Cal.Rptr. 748.)   We see no need to limit a definition of “other third parties” to exclude entities.   Trial courts should permit consideration by the trier of fact of any and all offers of assistance from a willing and responsible family member or friend or third party such as a community agency, halfway house, board and care facility or other entity.

III

 Larson contends the court erred in refusing to instruct the jury on the appropriate circumstantial evidence standard.   She asserts the court should have instructed the jury in accordance with CALJIC No. 2.01, Fourth edition 1979, rather than BAJI No. 2.00, Seventh edition 1986.  (All CALJIC jury instructions referred to are from the 4th ed. (1979);  all BAJI jury instructions referred to are from the 7th ed. (1986).)  We agree.

In Conservatorship of Roulet (1979) 23 Cal.3d 219, 235, 152 Cal.Rptr. 425, 590 P.2d 1, the California Supreme Court directed that proceedings under the LPS Act provide the same due process safeguards as criminal proceedings, including the requirement of establishing proof beyond a reasonable doubt.   Quoting from United States Supreme Court decisions, the court stated, “ ‘[C]ommitment is a deprivation of liberty.   It is incarceration against one's will, whether it is called “criminal” or “civil.” ’  [Citation.]  ․ ‘[C]ivil labels and good intentions do not themselves obviate the need for criminal due process safeguards․'  [Citation.]”  (Id. at p. 225, 152 Cal.Rptr. 425, 590 P.2d 1.)

Here, the court refused Larson's request for a jury instruction based on CALJIC No. 2.01 ⁴ relating to the circumstantial evidence standard applicable to this proceeding.   Instead, it relied upon the civil instruction in BAJI No. 2.00.⁵  “[I]n criminal cases, CALJIC No. 2.01 is required sua sponte when circumstantial evidence from which a reasonable inference of innocence could be drawn is substantially relied upon to prove guilt.  [Citations.]”  (Conservatorship of Walker (1987) 196 Cal.App.3d 1082, 1095, 242 Cal.Rptr. 289.)   In Walker, we held CALJIC No. 2.01 should likewise be given where the evidence requires in conservatorship trials to establish grave disability.  (Id. at p. 1098, 242 Cal.Rptr. 289.)   However, “where the circumstantial evidence necessary to prove a certain mental state is not subject to any inference except that pointing to the existence of that mental state [citations]” the court need not give the requested instruction.  (Ibid.)

It is undisputed this case presents circumstantial evidence of Larson's mental state.   Although the psychologist testified he did not believe Larson could commit herself to voluntary treatment or care for herself, Larson testified she was willing to take her medication, participate in treatment and could presently handle living in a board and care facility.   Because the circumstantial evidence necessary to prove Larson's mental state was subject to more than one inference, the trial court should have given the requested CALJIC instruction on circumstantial evidence.

However, the error was harmless beyond a reasonable doubt.   By giving CALJIC No. 2.90 the court properly instructed the jury “[t]he petitioner must prove beyond a reasonable doubt that Theresa Larson is gravely disabled and is unwilling to accept or is incapable of accepting voluntary treatment.”   As stated in Walker, the critical distinction between BAJI No. 2.01 and CALJIC No. 2.00 is that BAJI addresses “an issue unrelated to the evidentiary process required to prove the ultimate fact where the burden of proof is beyond a reasonable doubt.”  (Conservatorship of Walker, supra, 196 Cal.App.3d at p. 1095, 242 Cal.Rptr. 289.)   In instructing the jury the burden of proof was beyond a reasonable doubt (CALJIC No. 2.90), the distinction between BAJI No. 2.01 and CALJIC No. 2.00 was minimized.   Accordingly, reversal is not required.

IV

 Next, Larson claims the court failed to properly instruct the jury she is presumed not to be gravely disabled.   We agree.   Citing Conservatorship of Roulet, supra, 23 Cal.3d at page 235, 152 Cal.Rptr. 425, 590 P.2d 1, we previously determined this issue in Walker:  “A proposed conservatee has a constitutional right to a finding based on proof beyond a reasonable doubt.  [Citation.]  ․ [A] court is required to instruct in language emphasizing a proposed conservatee is presumed to not be gravely disabled until the state carries its burden of proof.”  (Conservatorship of Walker, supra, 196 Cal.App.3d at p. 1099, 242 Cal.Rptr. 289.)   The trial court erred in refusing to give the requested instruction.

However, the instructions given as a whole appear to have sufficiently apprised the jury of the findings it was required to make, the burden of proof to be applied, and the necessary legal definitions of each.   In light of the evidence of Larson's grave disability, the court's refusal to give the instruction was harmless beyond a reasonable doubt.

DISPOSITION

The JUDGMENT IS AFFIRMED.

FOOTNOTES

1.   All statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   The question as phrased is irrelevant.   The jury was to find Larson gravely disabled only if it found she was not able to care for herself either alone or with the assistance of a willing and responsible family member, friend or other third party.   Unfortunately, the trial court's response did not perceive this irrelevancy.   Instead, it appears to have assumed the question was whether a board and care facility was a third person.

3.   County in oral argument before this court took the opposite position:“The Court:  Do you believe the phrase ‘or other third party’ would preclude a board and care facility or other willing and responsible individual or association ․?   You wouldn't limit it, would you?“County Counsel:  No, I don't think.   Under the intent of the LPS act, I think it is very clear that if there are other resources available to a proposed conservatee, then that can function as a finding that the conservatee is not gravely disabled.”

4.   The refused instruction stated:  “A finding of gravely disabled may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the respondent has a mental disorder and cannot provide for the basic personal needs, but (2) cannot be reconciled with any other rational conclusion.“Further, each fact which is essential to complete a set of circumstances necessary to establish the respondent's grave disability must be proved beyond a reasonable doubt.   In other words, before an inference essential to establish grave disability may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt.“Also, if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to the respondent's grave disability and the other to not being gravely disabled, it is your duty to adopt that interpretation which points to the respondent's not being gravely disabled, and reject that interpretation which points to being gravely disabled.“If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and to reject the unreasonable.”

5.   The court instructed under BAJI No. 2.00 as follows:“Evidence may be either direct or circumstantial.   It is direct evidence if it proves a fact, without an inference, and which in itself, if true, conclusively establishes that fact.   It is circumstantial evidence if it proves a fact from which an inference of the existence of another fact may be drawn.“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.“The law makes no distinction between direct and circumstantial evidence as to the degree of proof required;  each is accepted as a reasonable method of proof and each is respected for such convincing force as it may carry.”

NARES, Associate Justice.

WIENER, Acting P.J., and BENKE, J., concur.