Filed 2/18/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Conservatorship of the Person 

of A.E.

2d Civil No. B297092

(Super. Ct. No. 56-2018-

00518054-PR-CP-OXN)

(Ventura County)

KRISTINE A.,

 Petitioner and Appellant,

v.

VENTURA COUNTY PUBLIC 

GUARDIAN, as Conservator, 

etc.,

 Objector and Respondent.

A prospective conservatee who suffers from Autism 

Spectrum Disorder, regardless of the degree of mental 

impairment, has due process rights. The Legislature has 

provided protection for a “special needs” person. Presence in 

court so that the trial judge may see and hear the person is a

necessary component of the process. Such a person may fear 

coming to court and will, generally speaking, fear change. Fear 
2

of a change in the living arrangement is especially true where the 

person has lived with the same parent for 26 years.

Kristine A., mother, appeals the trial court’s order 

denying her petition to be appointed conservator of her 26-yearold “autistic” daughter, A.E. She also appeals the trial court’s 

sua sponte order appointing the Ventura County Public Guardian

as the permanent limited conservator of A.E.’s person. A.E. did 

not appear at the hearing on the petition or tell anyone she was 

waiving her right to be present. We reverse. The trial court 

failed to make the requisite finding that A.E. did not want to 

attend the hearing, or could not be produced for the hearing due 

to medical inability, or that her appearance was likely to cause 

serious and immediate physiological damage. (Prob. Code, 

§ 1825, subds. (a)(2)-(3) & (b), (c).)1 We need not, and do not, 

reach other constitutional and statutory issues. 

Facts and Procedural History

A.E. is 26 years old. She suffers from Autism 

Spectrum Disorder, and has lived with appellant most of her life. 

A.E. does not like to be touched, is resistant to hygiene and selfcare, and has been placed on several psychiatric holds (Welf. & 

Inst. Code, § 5150) for Psychotic Disorder NOS, anxiety, posttraumatic stress disorder, depression, and intermittent explosive 

disorder. 

On September 25, 2018, appellant filed a petition to 

be appointed conservator of the person so that she could 

authorize medical treatment. A.E. had a painful tooth abscess 

but no dentist would treat her without a court order even though 

A.E. was a Ventura County Tri-County Regional Center (Tri1 All statutory references are to the Probate Code unless 

otherwise stated.
3

Counties) client. Lanette Hatch, a licensed physician assistant,

submitted a declaration that A.E. lacked the capacity to give 

informed consent to any form of medical treatment. 

Five weeks after the petition was filed, the court 

investigator reported that she was unable to communicate with 

A.E. The report summarized a lengthy history of referrals to 

child protective services and Adult Protective Services for abuse 

and neglect. But many of the referrals were unfounded or 

inconclusive. Tri-Counties advised that A.E. lacked the ability to 

make medical decisions and that appellant was “doing her best 

for” A.E. but had declined services in the past. The court 

investigator recommended that appellant’s petition be denied and 

that the public guardian be appointed as A.E.’s conservator. The 

public guardian did not file a petition to be appointed as 

conservator.

The trial court appointed the public defender to 

represent A.E. (§ 1471, subd. (c)) and continued the matter so TriCounties could complete A.E.’s evaluation. It also denied 

appellant’s temporary request for conservatorship and appointed 

the Ventura County Public Guardian as temporary conservator. 

Two months later, Doctor Tammy K. Brandt

prepared a written evaluation recommending a limited 

conservatorship for A.E.’s medical treatment. Dr. Brandt did not 

rule out appellant as a conservator but was concerned about the 

prior referrals for neglect and alcohol abuse.2

A month later, the trial court discussed the matter 

with counsel and appellant. The public defender, who 

2 Appellant was convicted of 1998 Colorado misdemeanors, 

driving without a license, driving under the influence, and 

reckless endangerment.
4

represented A.E., stated that A.E. was living with appellant and 

“I can’t point to anything that says [appellant] is not doing a good 

job at this point.” Appellant was concerned about A.E.’s tooth 

abscess and told the court: “I found a dentist that takes care of 

adult autism, . . . and [A.E.] needs this. She’s in so much pain 

that she’s acting out . . . [a]nd I don’t have the [temporary] 

conservator[ship] to say, okay, you got . . . to go honey. And she 

knows this, but she’s – she’s scared. . . . I called the [public] 

guardian and they - - they said there’s nothing we can do. 

Call 9-1-1.” 

The trial court asked about A.E.’s permanent 

placement and was told it is “still up in the air.” The public 

defender stated that Tri-Counties requested placement at several 

facilities and “all of them have declined to accept [A.E.] because 

of . . . the autism and the behavioral issues.” The public 

guardian’s attorney stated that “we’ve had similar cases, . . . 

where it can take up to a year to place someone with – with 

[A.E.’s] type of disabilities.”

The trial court was concerned. “[W]e’re here now, 

pretty far down the line, without medical treatment, without 

dental treatment, without access to services. . . . I have complete 

sympathy for [appellant and]. . . everybody involved, mostly A.E. 

. . . And I think that I’ve got to do what’s best – appoint the 

person or entity who is going to make things happen in a much 

more quick manner than they have happened.” The public 

guardian’s attorney said the public guardian, acting as A.E.’s 

conservator could work with Tri-Counties and appellant but 

conceded “the only choice would be to leave [A.E.] at home [with 

appellant] with the in-home services.”
5

Appellant’s trial counsel asked “Why not TriCounties working directly with [appellant]? If [A.E.] is going to 

be at home with her mother, her mother needs to be the 

conservator with these limited powers and work directly with TriCounties. If the Court wants to bring us back at the end of six 

months to see how things are going, great. I think that’s 

appropriate. But I think [appellant] is the more appropriate 

person to be the conservator during this six-month period or a 

year period while we’re waiting to get her placed. She absolutely 

wants [A.E.] to get the help she needs.” 

The trial court appointed the public guardian as the 

limited conservator of A.E.’s person and clarified its order.

“[T]his is not an extension of a temporary appointment. This is a 

permanent appointment.” 

Discussion

Section 1825, subdivision (a) requires that the 

proposed conservatee “be produced” at the hearing on the 

guardianship petition unless certain exceptions are met.

3 (See,

e.g., Conservatorship of John L. (2010) 48 Cal.4th 131, 146 

3 Section 1825, subdivision (a) states: “The proposed 

conservatee shall be produced at the hearing except in the 

following cases: [¶] (1) Where the proposed conservatee is out of 

the state when served and is not the petitioner. [¶] (2) Where the 

proposed conservatee is unable to attend the hearing by reason of 

medical inability. [¶] (3) Where the court investigator has 

reported to the court that the proposed conservatee has expressly 

communicated that the proposed conservatee (i) is not willing to 

attend the hearing, (ii) does not wish to contest the establishment 

of the conservatorship, and (iii) does not object to the proposed 

conservator or prefer that another person act as conservator, and 

the court makes an order that the proposed conservatee need not 

attend the hearing.”
6

[section 1825 procedure for proposed conservatee’s production 

and attendance must be followed at hearing on LPS proceeding].) 

Section 1825, subdivision (c) provides: “Emotional or 

psychological instability is not good cause for the absence of the 

proposed conservatee from the hearing unless, by reason of such 

instability, attendance at the hearing is likely to cause serious and 

immediate physiological damage to the proposed conservatee.” 

(Italics added.) There is no evidence of that. “If the proposed 

conservatee is unable to attend the hearing because of medical 

inability, such inability shall be established (1) by the affidavit or 

certificate of a licensed medical practitioner . . . .” (§ 1825, subd. 

(b).) 

Respondent argues: “There is nothing in the record 

to indicate that A.E. desired to attend the hearing, . . . [and] the 

Court Investigator’s Report, the [Tri-Counties] report, and 

[appellant’s] own petition make it clear that A.E.’s mental and 

emotional condition made her both unable and unwilling to 

attend the court hearing.” That does not satisfy section 1825. 

The record is silent on whether A.E. was asked if she 

wanted to attend the hearing or agreed to the proposed public 

guardian conservatorship. Section 1825, subdivision (a)(3) 

provides that a proposed conservatee may be excused from 

attending the hearing if he or she “expressly communicated” that 

he or she is unwilling to attend and does not contest the 

conservatorship or oppose the proposed conservator. This did not 

happen. 

Respondent argues that appellant forfeited the 

section 1825 issue by not objecting. Respondent cites no 

authority, and we have found none, that a biological parent can 
7

waive the section 1825 rights of an adult proposed conservatee, 

regardless of the degree of mental impairment.

When a petition is filed to establish a 

conservatorship, the matter must be conducted according to the 

law and procedure relating to the trial of civil actions, including 

trial by jury if requested by the proposed conservatee. (§ 1827.) 

The proposed conservatee is presumed to be competent and 

retains all his or her legal and civil rights. (§ 810, subd. (a).) The 

Legislature has declared that a conservatorship is to “[p]rotect 

the rights of persons who are placed under conservatorship,” to 

“[p]rovide that the health and psychosocial needs of the proposed 

conservatee are met,” and to “allow the conservatee to remain as 

independent and in the least restrictive setting as possible.” 

(§ 1800, subds. (a), (c), & (d).) A limited conservator may be 

appointed for a developmentally disabled adult to be utilized 

“only as necessary to promote and protect the well-being of the 

individual” and “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).) The standard of proof for appointment of a 

conservator is clear and convincing evidence (§ 1801, subd. (e))

and one of the goals of the conservatorship is to “[p]rovide that 

the health and psychosocial needs of the proposed conservatee 

are met.” (§ 1800, subd. (c).) 

Appellant and A.E. complain there was no testimony 

under oath, no opportunity for cross-examination, no opportunity 

to examine the biological parents, caregivers, or investigators, 

and that the conservatorship order violates the American with 

Disabilities Act (42 USC § 12101 et seq.). We do not reach those 
8

issues because section 1825 required that A.E. consent to the 

appointment of the proposed conservator or a showing had to be 

made that A.E. was unable or unwilling to attend the hearing.4

“Probate Code section 1825(a)(3)’s procedure pertaining to a 

proposed conservatee’s production and attendance at the hearing 

must be followed . . . .” (Conservatorship of John L., supra, 48 

Cal.4th at p. 146.) Section 1825 is like the light switch to the 

courtroom and until it is turned on (i.e., satisfied), the trial court 

cannot truly see the big picture. It is precluded from ruling on 

the merits of a petition to appoint a conservator until it complies 

with section 1825.

Disposition

The judgment (order denying appellant’s petition for 

appointment of conservator and orders appointing the Ventura 

County Public Guardian as temporary and permanent limited 

conservatorship of the person of A.E.) are reversed. The matter is 

remanded for further proceedings. We express no opinion on how 

the trial court should rule, on the merits. Costs are awarded to 

appellant.

CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P. J. TANGEMAN, J.

4 The physician assistant saw A.E. once and submitted a 

declaration stating that “[A.E.] has autism. The one visit I had 

with her she was able to follow very basic instructions with the 

help of her mother.” 
Roger L. Lund, Judge

Superior Court County of Ventura

______________________________

MacCarley & Rosen, Mark MacCarley and Lisa 

MacCarley; Law Offices of Ann C. Schneider and Ann C. 

Schneider for Petitioner and Appellant.

Gerald J. Miller, under appointment by the Court of 

Appeal for Conservatee.

Leroy Smith, County Counsel, Mitchell B. Davis, 

Assistant County Counsel for Respondent.