2003 WL 22701630 (Cal.App. 6 Dist.)
Not Officially Published
(Cal. Rules of Court, Rules 976, 977)
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Court of Appeal, Sixth District, California.
CONSERVATORSHIP OF the PERSON AND ESTATE OF, Maria Luisa FAUSTINO.
Maria J. SOUSA, as Conservator, etc., Petitioner and Appellant,
DIRECTOR OF DEVELOPMENTAL SERVICES, as Conservator, etc., Objector and
(Santa Cruz County Superior Court No. PR42349).
Nov. 14, 2003. Perry E. Olsen, Watsonville, CA, for plaintiff and appellant.
Cheryl Lynn Feiner, Ofc Attorney General, San Francisco, CA, for objector and respondent.
James McMillin, Santa Cruz, CA, for respondent.
At issue in the instant case is whether the trial court properly
appointed respondent Director of Developmental Services (Director) as
the conservator of Maria Luisa Faustino. Director and appellant Maria
J. Sousa, Faustino's mother, filed competing petitions to be appointed
conservator. On appeal, Sousa contends: (1) the superior court lacked
jurisdiction because the Director's petition and citation were never
served on Faustino; (2) the Director had no standing to petition for
conservatorship because he was not properly nominated; (3) the
Director's petition is not authorized by statute; (4) the Director did
not timely file the required report and capacity declaration; and (5)
the trial court did not advise and consult with the proposed
conservatee. For the reasons stated below, we affirm.
I. Statement of Facts
Faustino is a 29-year-old developmentally disabled woman, who has
moderate mental retardation and a severe speech impediment. She has
lived with Sousa all of her life. Faustino has been a client of the San
Andreas Regional Center (Regional Center) for the past 11 years. The
Regional Center organizes support services for developmentally disabled
people. Faustino has also been a client of the Pajaro Valley Training
Center (PVTC), which provides training in daily living skills,
pre-vocational skills, and communication.
While at the Regional
Center and PVTC, Faustino has worked with and developed personal
relationships with staff, including Debra Bell, her speech therapist,
Magda Borges, activities service supervisor, and Jessica Milligan,
client's advocate. Initially, Faustino was shy and had trouble
communicating simple concepts. However, Bell taught her how to use the
McCaw 3k device, which allowed her to communicate on various topics
using icons programmed into the device. As Faustino mastered the
device, it became clear that her cognitive abilities had been
Approximately two years ago, staff at the Regional Center and PVTC
noticed that Sousa began restricting Faustino's participation in
activities and programs. Sousa limited Faustino's attendance at the day
program at the Regional Center to two out of five days per week. Sousa
also limited how often Faustino could attend outings with peers.
Faustino clearly communicated that she enjoyed participating in these
activities and programs. Faustino also regularly communicated to staff
that she wanted to move out of Sousa's home and live with peers. Staff
attempted to discuss these issue with Sousa, but she refused.
On December 5, 2001, Sousa filed a petition for
conservatorship. The trial court appointed the public defender to
represent Faustino. On March 11, 2002, Santi Rogers, executive director
of the Regional Center, nominated the Director to be appointed as
limited conservator. On May 17, 2002, the Director filed a petition for
limited conservatorship of Faustino. On September 23, 2002, the trial
court granted the Director's petition. Sousa has filed a timely appeal.
Sousa first contends that the trial court lacked jurisdiction over the
Director's petition, because the petition and citation were never
served on Faustino.
Sousa does not challenge the trial court's subject matter jurisdiction, which is established by Probate Code section 2200:
"The superior court has jurisdiction of guardianship and
conservatorship proceedings." Instead, she challenges notice, which is
an aspect of personal jurisdiction. (See, e.g., Brown v. Williams (2000) 78 Cal.App.4th 182, 186-187, fn. 4.) However, only the person to whom jurisdiction attaches can challenge personal jurisdiction. (See, e.g., Estate of Hart (1984) 165 Cal.App.3d 392, 395-397.)
Thus, Sousa lacks standing to assert defective notice on behalf of
Faustino. Moreover, here Faustino waived any objections to personal
jurisdiction by making a general appearance at the trial. (See Marriage of Torres (1998) 62 Cal.App.4th 1367,
1381.) Accordingly, there is no merit to this contention.
B. Nomination of the Director
Sousa next contends that the Director has no standing to petition for conservatorship, because he was not properly nominated.
Health and Safety Code section 416.5
provides: "The director may be nominated by any one of the following to
act as guardian or conservator for any developmentally disabled person;
... [¶] (a) A parent, relative or friend. [¶] (b) The guardian or
conservator of the person or estate, or person and estate, of the
developmentally disabled person to act as his successor. [¶] (c) The
developmentally disabled person."
Here Santi J. Rogers, executive
director of the Regional Center, nominated the Director to be appointed
as limited conservator of Faustino. Sousa contends that Rogers'
nomination was actually a nomination by the Regional Center, and that
the Regional Center may not nominate the Director, because it is the
Director. We first note that Sousa concedes that the Regional Center is
a private nonprofit corporation. Thus, the Regional Center is not the
same entity as the Director. Second, nothing in the statute suggests
that a staff member of the Regional Center cannot be a "friend" of the
proposed conservatee for the purpose of nomination. As the record in
this case establishes, Faustino's "friends" include some of the staff
members of the Regional Center, who have been interacting with her for
many years. Thus, the Director was properly nominated in the instant case.
C. Health and Safety Code Section 416.23
provides: "This article does not authorize the care, treatment, or
supervision or any control over any developmentally disabled person
without the written consent of his parent or guardian or conservator."
Sousa contends that this statute prohibits the Director's petition,
because she did not give her written consent. However, section 416.23
applies to children as well as adults, who are already conserved. It
does not apply to legally independent, unconserved adults, such as
D. Welfare and Institutions Code Section 4620.1
*3 Welfare and Institutions Code section 4620.1
provides: "The Legislature recognizes the ongoing contributions many
parents and family members make to the support and well-being of their
children and relatives with developmental disabilities. It is the
intent of the Legislature that the important nature of these
relationships be respected and fostered by regional centers and
providers of direct services and supports." Sousa contends that the
Director's petition is an attempt to remove Faustino from her mother's
care in violation of section 4620.1.
There is nothing in the record to indicate that the Director's petition
was disrespectful of Sousa's relationship with Faustino. The Director
filed the petition only after repeated attempts were made to include
Sousa and other family members in planning for Faustino's future. Despite these efforts, Sousa refused to
acknowledge Faustino's right to work toward increasing her
independence. Thus, there is no merit to Sousa's contention.
E. Health and Safety Code Section 416.8
Health and Safety Code section 416.8
provides, in relevant part, that the trial court "shall be provided by
the regional center with a complete evaluation of the developmentally
disabled person for whose protection the appointment is sought. The
report shall include a current diagnosis of his physical condition
prepared under the direction of a licensed medical practitioner and a
report of his current mental condition and social adjustment prepared
by a licensed and qualified social worker or psychologist." The trial
court also must be provided with a capacity declaration. (Cal. Rules of
Court, rule 201.1.)
Sousa contends that the report and capacity declaration were not provided to the trial court prior to its decision.
In the instant case, both the Director and Sousa introduced extensive
evidence at trial as to Faustino's diagnosis and her current mental
condition and social adjustment. At the conclusion of the trial on June
20, 2002, the trial court indicated that it was "inclined" to grant the
Director's petition. On July 29, 2002, the Director provided the trial
court with the capacity declaration. On July 31, 2002, the Director
provided the trial court with the section 416.8
report. On September 23, 2002, the trial court
issued the order appointing the Director as conservator. Thus, assuming
the trial court erred in not receiving the report and the capacity
declaration at trial, the error was harmless. Since Sousa does not
challenge the contents of either the report or the capacity
declaration, and the trial court considered both the report and
capacity declaration prior to issuing its order, it is not reasonably
probable that there would have been a more favorable result for Sousa
had these documents been introduced at trial. (People v. Watson (1956) 46 Cal.2d 818, 836.)
F. Advisements and Consultation with Proposed Conservatee
Sousa contends that the trial court erred by failing to advise and
consult with Faustino before appointing the Director as conservator.
Prior to the establishment of a conservatorship, the trial court shall
inform the proposed conservatee as to "[t]he nature and purpose of the
proceeding," "[t]he establishment of a conservatorship is a legal
adjudication of the conservatee's inability properly to provide for the
conservatee's personal needs or to manage the conservatee's own
financial resources," "[t]he proposed conservatee may be disqualified
from voting," "[t]he identity of the proposed conservator," "[t]he
nature and effect on the conservatee's basic rights," and that "[t]he
proposed conservatee has the right to oppose the proceeding, to have
the matter of the establishment of the conservatorship tried by jury,
to be represented by legal counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel." (Prob.Code, § 1828.)
After so advising the proposed conservatee, the trial court is required
to consult with the proposed conservatee to determine his or her
opinion as to the establishment of the conservatorship. (Ibid.) [FN1]
FN1. Health and Safety Code section 416.95
also requires the trial court to so inform and consult with the
proposed conservatee prior to appointing the Director of Developmental
Assuming that Sousa has standing to raise this contention on appeal, "the advisements required under Probate Code section 1828
were created by the Legislature and, consequently, are not
constitutionally required ... the right to these advisements can ... be
validly waived by the proposed conservatee's counsel." (Conservatorship of Mary K. (1991) 234 Cal.App.3d 265, 271.) Here Faustino's counsel waived her right to the section 1828 advisements. Accordingly, the trial court did not err by failing to advise and consult Faustino.
The order is affirmed.
We concur: ELIA, Acting P.J., and WUNDERLICH, J.
Cal.App. 6 Dist.,2003.
In re Conservatorship of Person and Estate of Faustino
2003 WL 22701630 (Cal.App. 6 Dist.) Not Officially Published, (Cal. Rules of Court, Rules 976, 977)
Briefs and Other Related Documents (Back to top)
• 2003 WL 22938656 (Appellate Brief) Respondent's Brief (Apr. 03, 2003)Original Image of this Document (PDF)
• 2003 WL 22938657 (Appellate Brief) Respondent's Brief (Apr. 03, 2003)Original Image of this Document (PDF)
• 2003 WL 22938655 (Appellate Brief) Appellant's Opening Brief (Mar. 03, 2003)Original Image of this Document (PDF)
• H025159 (Docket) (Oct. 23, 2002)
END OF DOCUMENT
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