IN RE CONSERVATORSHIP OF AUSTIN D.

No. A147549.

Conservatorship of the Person of AUSTIN D. PUBLIC GUARDIAN OF SONOMA COUNTY, Petitioner and Respondent, v. AUSTIN D., Objector and Appellant.

Court of Appeals of California, First District, Division Two.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

STEWART, J.

In November 2015, the Sonoma County Office of The Public Conservator (Public Conservator) petitioned for reappointment as conservator for the person of Austin D. pursuant to Welfare and Institutions Code section 5361,1 on the ground Austin was still gravely disabled as a result of a mental disorder.2

Two witnesses testified: Austin himself, and Dr. Gary Bravo, a psychiatric expert with eight years' familiarity with Austin, who explained that Austin suffers from paranoid schizophrenia and concluded that, while Austin was "doing better" than in the past in terms of his delusions, Austin remained gravely disabled and is unable presently to provide for his own food, shelter and clothing. We discuss pertinent portions of their testimony below.

A jury found Austin was still gravely disabled, following which the court granted the petition, reappointing the Public Conservator for one year. Austin now appeals, contending there is no substantial evidence he remains gravely disabled. We affirm.

DISCUSSION

We recently summarized the applicable law in Conservatorship of Jesse G. (2016) 248 Cal.App.4th 453: "[A] conservator may be appointed `for a person who is gravely disabled as a result of a mental health disorder.' (§ 5350.) `Gravely disabled' is defined as, inter alia, `[a] condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.' (§ 5008, subd. (h)(1)(A).)" (Id. at p. 460.) In the trial court, "`the evidence must support an objective finding that the person, due to mental disorder, is incapacitated or rendered unable to carry out the transactions necessary for survival or otherwise provide for his or her basic needs of food, clothing, or shelter,' and the public guardian must prove beyond a reasonable doubt that the proposed conservatee is gravely disabled." (Ibid.) On appeal, we review a finding of grave disability for substantial evidence, and "[t]he testimony of one witness may be sufficient to support such a finding." (Id. at p. 461.)

Austin acknowledges, citing Conservatorship of Walker (1989) 206 Cal.App.3d 1572 (Walker) and Conservatorship of Guerrero (1999) 69 Cal.App.4th 442 (Guerrero), that one way to prove a "grave disability" is by means of expert testimony showing "the individual does not believe he is ill or needs medication, he will not take medication if unsupervised, and without taking medication the conservatee will be gravely disabled."3 Yet Austin argues, in effect, there is substantial evidence Austin does not meet that standard, because "[s]ubstantial evidence showed [Austin] knew he needed medication and was willing to take it voluntarily despite lacking complete insight into his diagnosis."

We reject this contention. Austin turns substantial evidence review on its head, for the question is not whether there was any substantial evidence Austin is not gravely disabled but whether there is substantial evidence to support the jury's finding that he is. By focusing his appellate arguments on only the evidence that supports his position and disregarding contrary testimony, Austin essentially asks us to reweigh the evidence which we cannot do.

This case is squarely controlled by Walker and Guerrero. Walker affirmed an order of reappointment based on the testimony of a single expert that the conservatee was still hallucinating although medication was controlling the delusions to some degree, the conservatee did not himself believe he was ill or needed treatment or medication, and that without medication he could not provide for his own needs—even though during his own testimony the conservatee haltingly suggested he would stay on his medication. (See Walker, supra, 206 Cal.App.3d at p. 1576.)

In affirming the finding of a grave disability, Walker held the expert's testimony was sufficient: "Here, Dr. Levy testified that appellant remained gravely disabled because he had no insight into his mental illness. He did not believe he was ill, nor did he believe he needed medication. The evidence was undisputed that without the medication, appellant could not provide for himself. Given the opportunity to dispute the statements that he lacked insight into his illness and would not take his medication if released, appellant could offer nothing more than his statement that he had taken the medicine before. Such testimony, however, did not controvert the doctor's opinion that appellant still needed 24-hour supervision. Indeed, the fact that appellant had been gravely disabled and committed in 1986 was evidence which the court could consider that appellant did not take his medication on a voluntary basis."4 (Walker, supra, 206 Cal.App.3d at p. 1577.)

Following Walker, Guerrero affirmed an order of reappointment in similar circumstances. (See Guerrero, supra, 69 Cal.App.4th at pp. 446-447.) At issue was the following jury instruction, which Guerrero approved as a correct statement of the law under Walker: "`In determining whether Respondent is presently gravely disabled, you may consider evidence of his past failure to take mental health medication when prescribed, and you may consider evidence of Respondent's lack of insight into his mental condition. [¶] If you find Respondent will not take his medication unless required to do so and that a mental disorder makes him unable to provide for his basic personal needs for food, clothing or shelter without such medication, then you may conclude Respondent is gravely disabled.'" (Id. at pp. 445-446.)

Guerrero concluded this instruction "contemplates exactly the situation presented in [Walker]," and held it was appropriately given in light of the evidence. (Guerrero, supra, 69 Cal.App.4th at pp. 446-447.) The court explained, "Dr. Bienkowski testified Guerrero did not believe he was ill and would not take his medication without supervision. Guerrero had a history of not taking medication when unsupervised. Dr. Bienkowski said Guerrero, because of his mental illness, could not provide for his basic needs of food, clothing and shelter without the assistance of others, such assistance was unavailable outside of the conservatorship, and Guerrero's mental condition would further deteriorate without medication. In other words, but for the medication, which Guerrero would not take without supervision, Guerrero was presently gravely disabled. Jury instruction No. 6 provided an appropriate framework for the jury to consider these factors when determining whether Guerrero was presently gravely disabled." (Id. at pp. 446-447, italics added.)

Here, Dr. Bravo's testimony constitutes substantial evidence of a grave disability under Walker and Guerrero. By the time of trial, Austin had been out of a locked, long-term setting for approximately six months, since April 2015. Dr. Bravo testified Austin was currently on two medications that helped control some of his more severe hallucinatory symptoms, and was living in an unlocked residential group home where the staff there monitored and administered his medication, which was "over the years, very important in keeping him stable." Austin had been complying with his medication regimen for over eight months, apparently without resistance. And he was participating in independent living groups there, designed to help him develop living skills. Dr. Bravo also acknowledged Austin is able to eat without assistance in that environment, cook for others, dress himself daily and bathe. But, as in Walker and Guerrero, Dr. Bravo's testimony reflects that Austin doesn't believe he is ill, will not stay on medication if unsupervised, and cannot meet his own needs if not medicated.

According to Dr. Bravo, "[T]he main issue is [Austin's] total denial of how seriously ill he has been, what his diagnosis is, whether he needs medication, what his plans are. . . . Given his lengthy history . . . [i]t's just remarkable that he thinks he's fine, and can be on his own, when the history [is] very . . . clear that he can't." According to Dr. Bravo, Austin "lacks insight" into his mental illness, denying that he has it and does not understand he needs treatment. And Dr. Bravo explained how denial of that sort usually makes it "much less likely" that someone can effectively manage their illness, stay on their medication, and "try to live a more normal life." He didn't think Austin could make rational life choices for himself were he on his own. He didn't think Austin was presently fit to drive a car, own a gun, or even find housing and get a job on his own, as Austin told Bravo he intended to do if conservatorship were terminated.5 And, as said, in his opinion, Austin was not currently able to provide for his own food, shelter and clothing (the reasonable inference from his testimony being, not without medication). And although Austin's treating physicians reported Austin was gradually getting better since April 2015, Dr. Bravo testified about delusional statements Austin had made as recently as a week before trial and reported that Austin's treatment team and treating psychiatrist believed he should still remain under conservatorship. According to Dr. Bravo, Austin "does very well" when on medication, and usually stabilizes in a locked setting, but has a history of stopping his medication, dropping out of treatment and regressing when not under conservatorship.6

Austin's own testimony bore out the denial that Dr. Bravo described. Although Austin's appellate brief correctly points out Austin acknowledged he had been diagnosed with schizophrenia, it fails to acknowledge Austin downplayed and denied that diagnosis on the witness stand ("I don't really believe I have a mental health issue"; "I do not have any [symptoms of schizophrenia]"; "[Dr. Bravo] says I was having auditory hallucinations. . . . I have never had auditory or visual hallucinations"). Asked on cross-examination if he thought his current medications helped him, he hedged ("They do sedate me. They give me diarrhea. I don't really believe they change the way my mind works"). His testimony at times was not entirely lucid.7 And his testimony reflected a deep distrust of the psychiatrist profession: for example, asked if he thought psychiatry is illegal, he confirmed that he did: "I know that since 1963, the administration illegalized psychiatry as defining it one of the forced medical captivity situations that is treason in the United States by United States Federal law and in California and State Federal law." Asked if he would still follow a psychiatrist's advice despite his views the profession is illegal, he grudgingly evaded the question ("I'm bullied, and my mother will, requires me to see the psychiatrist; so I see the psychiatrist").

Dr. Bravo also was "sure," given his familiarity with Austin, that Austin would not take his medication if unsupervised. Recounting details, Dr. Bravo explained that he believed this because Austin "has not demonstrated enduring periods of time when he's been . . . out of institutions that he [can] take his medication on his own." For example, in 2009, when Austin's first conservatorship ended, Austin's condition was better than at present and he was not in denial about his mental condition, yet within six weeks after his conservatorship terminated Austin stopped taking his medication anyway despite acknowledging a need for it, and ended up right back in a psychiatric hospital. And when Austin went off his medications in 2013, he got arrested for an altercation with a roommate, and Dr. Bravo treated him in jail where he found Austin "very hyperactive . . ., very delusional" and refusing to take medication.

Dr. Bravo acknowledged on cross-examination that Austin "has shown a great deal of improvement" and that many people with Austin's diagnosis are able to live independently, but explained that the important distinction is that they, unlike Austin, voluntarily accept assistance from others, don't deny their illness, and seek help. And while he acknowledged that denial is not a complete predictor that someone will stop taking their medication, he testified there is "a high correlation."

For his part, Austin did not consistently and unequivocally testify that if conservatorship were terminated he would continue taking his medications voluntarily. Initially on direct examination, he hedged ("If required, yes, I would"). Then at the end of direct examination, he said "Yes, I would." Asked on cross-examination, he hedged again ("Yes. If required by the State"). Asked to elaborate, he indicated it would depend on whether he got a job or stayed on public assistance ("Well, there are many I avenues I was thinking about, because I might be getting a job and getting off of Social Security Disability and I might be keeping the disability. If I'm on the disability, I believe my parents want me to continue seeing a psychiatrist; and therefore, I would see the psychiatrist and get the prescriptions there. And so I would take them"). When pressed on cross-examination, he promised twice unequivocally that he would take his medications if nobody forced him to do so, while at the same time testifying that if his psychiatrist prescribed different medication in the future, he would take them "if required." He also denied going off his medications in the past when not under conservatorship.

While the facts of this case differ slightly in some respects from Walker and Guerrero, the upshot is the same: there is substantial evidence that "but for the medication, which [Austin] would not take without supervision, [Austin] was presently gravely disabled." (Guerrero, supra, 69 Cal.App.4th at p. 447.)

Austin argues both cases are distinguishable, but we are not persuaded. He contends that those cases are different, because the conservatees "did not have any insight into their mental illness." But as just shown, Dr. Bravo's testimony that Austin "lacks insight" into his illness (and Dr. Bravo's reasoned explanation in support of that opinion) is substantial evidence that Austin lacks insight too; and, indeed, Austin's own testimony corroborated Dr. Bravo's opinion on this score. Austin argues that he "knew he was diagnosed with schizophrenia and he required medication to treat it" and "repeatedly confirmed he would continue to voluntarily take medication," but that takes liberties with this record, read as a whole. Austin also argues Walker and Guerrero are distinguishable because "the evidence showed [Austin] was compliant in taking his medication for the past eight months; he wasn't hiding pills as did Guerrero." Here again, though, this misses the point: the question is whether there is substantial evidence that he would voluntarily continue to take his medication without supervision, and as just shown there is. (See Walker, supra, 206 Cal.App.3d at p. 1577; Guerrero, supra, 69 Cal.App.4th at pp. 446-447.) Furthermore, the conservatee in Walker was taking his medication too, and there is no indication he refused it while under conservatorship. (See Walker, at p 1576.)

DISPOSITION

The judgment is affirmed.

KLINE, P.J. and RICHMAN, J., concurs.

FootNotes


1. All further statutory references are to the Welfare and Institutions Code.
2. The history of Austin's earlier conservatorships is recounted in our prior opinion in this case. (See In re Conservatorship of A.D. (July 23, 2015, A143972) 2015 WL 4485554.)
3. The jury was instructed in accordance with these principles, and Austin does not challenge any of the instructions. It was told, inter alia, "If you find [Austin] will not take his prescribed medication without supervision and that a mental disorder makes him unable to provide for his basic needs for food, clothing or shelter without such medication, then you may conclude [Austin] is presently gravely disabled." It was further instructed not to consider "the likelihood of future deterioration or relapse of a condition."
4. The jury was instructed in accordance with this latter point too. It was told, inter alia, "you may consider evidence that [Austin] did not take his prescribed medication in the past. You may also consider evidence of his lack of insight into his mental condition."
5. Austin testified he wants to find a job and rent a room, and testified that he does his own laundry. He testified he would apply for food stamps and do his own shopping with his mother's help.
6. None of these aggravating facts were present in the authorities Austin cites. (See Conservatorship of Murphy (1982) 134 Cal.App.3d 15, 17-19 [expert could not unequivocally say conservatorship was still necessary for former alcoholic, but merely speculated he might resume the use of alcohol]; Conservatorship of Benvenuto (1986) 180 Cal.App.3d 1030, 1033-1034 [schizophrenic with no overt symptoms and no evidence of being in denial].)
7. Asked his what rank he held when he left military service, he replied, "President Admiral Judge Advocate General since age 18 years, born in the Selective Service of President Judge Advocate General. Twenty-two years old, I was President of Judge Advocate General." He also testified, "I'm a forever officer in the military too. I still have rank in it. . . . [which] means I still have the right to practice the licensing of the federal military." Asked to explain, he testified that license allowed him to "represent the United States . . . [as] Judge Advocate General, fighter pilot." Asked if he had any advanced degrees, he responded: "I have training course, PhD in federal law since 19 years old. Post-doctoral degree in federal law, training course—it doesn't take that long. Took like six-month long program to study. Age 22 years old, I have a law course, Bachelors degree in Christian law, which is Biblical law. And I'm licensed to all of those."

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