2003 WL 23330773 (Cal.)

Supreme Court of California.

In re FAUSTINO,

Maria Luisa Faustino Real Party in Interest.

No. S121428.

December 24, 2003.

Court of Appeal Case #H025159, (Santa Cruz County Superior Court Case PR 42349)

Petition for Review

Maria J. Faustino Sousa, 137 Arthur Way, Watsonville, CA 95076,

(831) 722- 8418, Parent-Petitioner and Next Friend in Propria Persona, On Behalf of Maria Luisa Faustino

*i TABLE OF CONTENTS

TABLE OF CONTENTS ... I

TABLE OF AUTHORITIES ... III

PETITION FOR WRIT OF REVIEW ... 1

I. NECESSITY FOR REVIEW ... 2

II. BACKGROUND ... 3

III. QUESTIONS TO BE DECIDED ... 5

IV. PUBLIC POLICY ISSUES ... 8

V. ARGUMENT ... 12

A. THE STATE MAY NOT PETITION FOR CONSERVATORSHIP OF THE DIRECTOR OF DEVELOPMENTAL SERVICES OVER THE OBJECTIONS OF A CARING SURVIVING PARENT UNDER HEALTH & SAFETY §416, ET SEQ. ... 12

B. THE ALTERNATE PROCEDURE OF §416.9 DOES NOT AUTHORIZE THE STATE TO CIRCUMVENT THE REQUIREMENTS OF §416.23 FORCING CONSERVATORSHIP UPON A DEVELOPMENTALLY DISABLED PERSON IN THE CARE OF HER FAMILY ... 13

C. THE FAUSTINO INTERPRETATION ERRONEOUSLY PLACED TWO STATUTORY PROCEDURES OF HLTH. & S §416.5 AND §416.9 AT APPARENT CONFLICT, WHICH MUST NOT BE SUSTAINED ... 14

D. BELLINO DECISION DEFINITIVELY HARMONIZES THE PREVAILING STATUTES CLARIFYING THE ENTIRE STATUTORY SCHEME OF CONSERVATORSHIP LAWS, FAVORING THE PETITIONER ... 15

E. THE NOMINATING PROCEDURE REQUIRED BY HLTH. & S §416.5 OF THE INSTANT CASE AND FAUSTINO WAS RENDERED MOOT BY THE SIXTH DISTRICT RULING AND MUST BE DISAVOWED ... 18

F. CONTRARY TO THE FAUSTINO OPINION, REGIONAL CENTER NOMINATION IS SELF NOMINATION AND CANNOT QUALIFY UNDER §416.5 ... 19

G. A REGIONAL CENTER OR ITS DIRECTOR CANNOT BE CONSTRUED TO QUALIFY AS A "FRIEND" FOR PURPOSES OF NOMINATION UNDER HLTH. & S §416.5 AS RULED IN FAUSTINO, AND SUCH NOMINATION IS NECESSARY WHEN A CARING PARENT IS AVAILABLE ... 20

H. DDS INFERRED THAT NOMINATION WAS NECESSARY IN THE MANNER IN WHICH THEY PROCEEDED ON THE BASIS OF §416.5 IN FAUSTINO, AND THEN PROCEEDED ALONG §416.9 ALLEGING IT TO BE UNNECESSARY ... 21

*ii I. SIXTH DISTRICT INTERPRETATION OF §416.23 IS AGAINST THE STATUTE AND IS A FORCED INTERPRETATION THAT SHOULD BE DISAVOWED ... 22

J. BELLINO RATHER THAN FAUSTINO INTERPRETATION OF §416.23 HARMONIZES THE ENTIRE SCHEME OF §416 ET SEQ INCLUDING §416.5, §416.9, WELF & I §4500 ET SEQ, (LANTERMAN ACT), AND PROB C. §1812 ... 24

K. NON-COMPLIANCE WITH THE STATUTORY NOMINATING PROCEDURE OF HLTH. & S §416.5 AS INTERPRETED BY FAUSTINO IS BAD SOCIAL POLICY AND AGAINST LEGISLATIVE INTENT AND MUST BE DISAVOWED ... 25

L. PROBLEMS WITH INTERPRETATION OF THE ORDER OF PREFERENCE IN HLTH. & S §416.9 MUST BE RESOLVED BY THE COURT IN FAVOR OF FAMILY RATHER THAN THE STATE ... 27

M. MOTHER'S CONTROL OF HER DEVELOPMENTALLY DISABLED DAUGHTER IS THAT OF A WISE PARENT EXERCISING DILIGENT SUPERVISION AND DISCRETION AND MUST NOT BE CHALLENGED ... 29

N. AN ORDER OF PREFERENCE IN FAVOR OF FAMILY ALREADY EXISTS TO FILL THE VACUUM OF §416.5 IN FEDERAL AND STATE LAW AND MUST BE APPLIED HERE AND IN FAUSTINO BY DISAVOWING THESE RULINGS ... 30

O. PARENTS FUNDAMENTAL RIGHTS TO THE CONTROL AND UPBRINGING OF THEIR CHILDREN MUST EXTEND TO SEVERELY RETARDED ADULT CHILDREN UNDER THEIR CARE ACCORDING TO THEIR DISCRETION ... 31

P. PARENTAL CARE MUST BE PRESUMED TO BE PREFERABLE TO STATE CARE ... 32

Q. DIRECTOR'S PETITION JUSTIFIES LUISA'S CONSERVATORSHIP THROUGH INCORRECT APPLICATION OF LAWS AND CASES AND IS THUS DEFECTIVE ON ITS FACE ... 33

R. STATE MAY NOT CONSTITUTIONALLY IMPOSE UNNECESSARY CONSERVATORSHIP UPON DEVELOPMENTALLY DISABLED PERSON WHO IS NOT GRAVELY DISABLED, NOR DANGEROUS, NOR MENTALLY ILL, AND LIVING WITH WILLING AND RESPONSIBLE FAMILY OR FRIENDS ... 34

S. DANNER'S RULINGS AND SARC VIOLATE MARIA LUISA FAUSTINO'S MOST BASIC CIVIL RIGHTS AS MANDATED BY FEDERAL LAW ... 35

T. DANNER'S RULINGS AND SARC VIOLATE MARIA LUISA FAUSTINO'S MOST BASIC CIVIL RIGHTS AS MANDATED BY STATE LAW ... 38

*iii U. THE TRIAL COURT ACTED IMPROPERLY ALLYING ITSELF WITH THE STATE IN APPOINTING AN ADVERSARIAL PUBLIC DEFENDER PURPORTING TO REPRESENT THE DEVELOPMENTALLY DISABLED DAUGHTER AGAINST THE MOTHER GIVING INEFFECTIVE ASSISTANCE OF COUNSEL TO THE CONSERVATEE ... 39

VI. PETITION FOR JUDGMENT ... 40

VII. VERIFICATION ... I

VIII. PROOF OF SERVICE ... II

IX. CERTIFICATION OF WORD COUNT ... III

TABLE OF EXHIBITS ... IV

TABLE OF AUTHORITIES

CASES

Bellino v Superior Court of Riverside County, 137 Cal.Rptr.523, 70 Cal.App.3d 824 (1977) (Fourth Dist.), ... 2, 15

Conservatorship of Davis, 124 Cal.App.3d 313, 177 Cal.Rptr. 369, Cal.App. 2 Dist., (1981) ... 34

Conservatorship of Early, 35 Cal.3d 244, 673 P.2d 209, 197 Cal.Rptr. 539, Cal. (1983) ... 34

Conservatorship of Wilson, 137 Cal.App.3d 132, 186 Cal.Rptr. 748, Cal.App. 4 Dist., (1982), ... 34

Guardianship of R. C. 140 Cal.Rptr. 133. 72 Cal.App.3d 417 (1977) (First Dist., Div 4) ... 2

Guardianship of Smith, 100 Cal.App.3d 882 (1980) ... 21

In re Conservatorship of Person and Estate of Faustino 2003 WL 22701630, ... 1

In re Hop, 29 Cal.3d 82 (1981) ... 2

In Re Violet Jean C, 213 Cal.App.3d 86 (1989) (Second Dist., Div. 6), ... 2

Moyer v. Workmen's Comp. Appeals Bd. 10 Cal. 3d 222, 110 Cal.Rptr. 144, (1973) ... 2

Moyer v. Workmen's Comp. Appeals Bd. 110 Cal.Rptr. 144 Cal. 1973 ... 19

North Bay Regional Center v Sherry S, 207 Cal. App.3d 449, 256 Cal.Rptr. 129 (1989) (First Dist, Div. 4), ... 2

O'Conner v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396, U.S.Fla (1975) ... 34

Parham v. JR 442 U.S. 584, 602 (1979) ... 31

Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary 45 S.Ct. 571 U.S. (1925) ... 31

Santosky v Kramer, 102 S.Ct. 1388 ... 39

STATUTES

Hlth. & S §416 ... 12

Hlth. & S §416.9 ... 27

Hlth. & S §416.23 ... 13

*iv Hlth. & S. §416.5 ... 17

Hlth. & S. §416.5 ... 13

Lanterman Developmental Disabilities Services Act (Welf & I §§4500, et seq ... 15

Lanterman-Petris-Short Act (Welf. & I §§5000, et seq) ... 15

Prob C §1830-1835 ... 14

Prob. C. §1812 ... 26

Title I, Part A, Sec. 110, PL 98-527 (HR 5603) ... 36

Welf. & I §4502 ... 37

Welf. & I §4502, §4503 ... 37

Welf. & I §4503 ... 38

Welf. & I. §4685 ... 29

Welf. & I. §4685(a) ... 30

Welf. & I. §4685(c)(2) ... 30

Welf. & I. §4803 ... 16

Welf. & I. §4825 ... 16, 30

Welf. & I. §5008(h)(3) ... 32

Welf. & I. §5250(d)(1) ... 32

TREATISES

58 Ops. Atty. Gen. 688, 9-24-75 ... 17

6 U.C. Davis L.Rev. 40, 53 ... 16, 21

Legal Planning for the Mentally Retarded: The California Experience, 60 Cal.L.Rev. 438, 510 ... 16

*1 PETITION FOR WRIT OF REVIEW

TO THE HONORABLE RONALD GEORGE, CHIEF JUSTICE, AND THE HONORABLE ASSOCIATE JUSTICES, CALIFORNIA SUPREME COURT Petitioner, Maria J, Sousa, on behalf of her developmentally disabled adult daughter, Maria Luisa Faustino, hereby requests that this Court grant her Petition for Review from the unpublished decision of the California Court of Appeal, Sixth Appellate District, filed November 14, 2003, cited as In re Conservatorship of Person and Estate of Faustino 2003 WL 22701630, Slip Copy Cal. App. (6 Dist.) (A copy of the opinion of the Court of Appeal is *2 attached thereto as Exhibit A.)

I. NECESSITY FOR REVIEW

In the instant case, we are presented by the Sixth District Court of Appeals with a classic confrontation between long affirmed and well respected constitutional liberty rights of the family pitted against unwarranted, aggressive intrusions of the State.
Here we pray this Court to reaffirm clearly and unambiguously that the provisions of Division 1, Part 1, Chapter 2, Article 7.5 of the Health and Safety Code, including §§416-416.23 do not grant the Director of Developmental Services the right to intrude into an intact family situation without exceptionally good cause to conserve a non-dangerous and non mentally-disordered developmentally disabled adult, who has been competently cared for by her family all her life without any prior conservatorship, and do so over the family's strenuous objections in a contested conservatorship proceeding. Failing to do so would establish a very dangerous precedent that would vitiate decades of hard fought case law rulings affecting the Petitioner and her daughter and hundreds or thousands of others similarly situated.
The decision in Conservatorship of Faustino. supra, is deeply flawed and contrary to the decisions of other Court of Appeals Decisions, principally Bellino v Superior Court of Riverside County, 137 Cal.Rptr.523, 70 Cal.App.3d 824 (1977) (Fourth Dist.), North Bay Regional Center v Sherry S, 207 Cal. App.3d 449, 256 Cal.Rptr.129 (1989) (First Dist, Div. 4), In Re Violet Jean C, 213 Cal.App.3d 86 (1989) (Second Dist, Div. 6), Guardianship of R. C. 140 Cal.Rptr.133. 72 Cal.App.3d 417 (1977) (First Dist., Div 4), and of this Court in In re Hop, 29 Cal.3d 82 (1981), and Mover v. Workmen's Comp. Appeals Bd. 10 Cal. 3d 222, 110 Cal.Rptr.144, (1973), etc. This instant case is but one *3 example of the fact that Faustino has sown and will continue to sow significant confusion and inconsistent decisions in the trial courts and court of appeals of this state (particularly in unpublished decisions like this one) which is likely to continue to evade review if it is not soon disavowed by this Court.
Thus this court now has before it a case of first impression which presents for resolution the types of questions which will permit the Court not only (1) to secure uniformity of decision of the various Courts of Appeal, and (2) to settle the important questions of law at issue (see California Rules of Court, rule 29(a)(1)), but also (3) to do justice and reach the equitable result.

II. BACKGROUND

The Petitioner Maria J. Faustino Sousa is the mother of Maria Luisa Faustino (Luisa), a 31 year old developmental disabled adult who has lived with and been cared for by her family for her entire life. Luisa belongs to a large, extended, close knit, successful working family of Portuguese extraction, all of whom are willing to care for her. She is moderately retarded, suffering from autism and developmental delay, without any other psychiatric diagnosis and has been evaluated as functioning at the level of a 6-1/2 year old. She is non-dangerous and therefore not subject to the provisions of the Lanterman-Petris- Short Act (LPS). She is a client of the San Andreas Regional Center (SARC) and participates in the Pajaro Valley Training Center (PVTC). Luisa is currently still living at home with her mother, but that could easily change if the State's conservatorship is confirmed on appeal.
On December 5, 2001, concerned that the Regional Center was curtailing her ability to prudently oversee her daughter's program activities for her protection , Sousa filed a petition for conservatorship.
*4 The trial court appointed a private law firm to act as the public defender to represent Luisa over the objections of the family. This firm's attorney, Mr. James McMillan, allied himself from the very outset with the interests of the State and against Luisa's family, even before the State's petition.
On March 11, 2002, Santi Rogers, executive director of the Regional Center, nominated the Director to be appointed as limited conservator of Luisa under Health and Safety Code §416.5. On May 17, 2002, the Director filed a petition for limited conservatorship of Luisa. A trial was held in a contested conservatorship proceeding between the mother and the State, with the mother petitioning under the provisions of the Probate Code and the State petitioning under the provisions of the Health and Safety Code. Members of the large extended Faustino family testified that they would be willing to care for Luisa as well.
On May 17, 2003, the trial court granted the Director's petition for limited conservatorship enumerating the power to fix residence at any place including a developmental center (state hospital), the power to make medical decisions and control confidential records and the power to make educational decisions. See Exhibit B p 45.
Sousa filed a timely appeal in the Sixth District Court of Appeals in San Jose, which was denied on November 12, 2003, primarily challenging the Petitioner's basis in petitioning via a Director's Petition under Health and Safety Code §§416-416.23. (See Petitioner's Brief Exhibit C) In the briefing, Mr. McMillin acting allegedly as Luisa's attorney sought to depict the mother as merely grasping at harmless technical and procedural defects in order to overturn a properly appointed conservatorship. (See Respondent's Brief Exhibit D) The State was represented by Deputy Attorney General Sheryl *5 Feiner at this appeal, who echoed Mr. McMillin's argument (See Respondent's Brief Exhibit E). The appeals court appears to have hinged their decision largely upon their unprecedented interpretation that Luisa's status as an unconserved and allegedly legally emancipated adult vitiated the strictures of Health and Safety Code §416.23 which prohibited the Director from petitioning for conservatorship without the consent of a parent, conservator or the conservatee herself.
Mrs. Sousa's attorney failed to inform her that her appeal had been denied for almost a month until it was almost too late to review it (Exhibit C), and she was obliged to proceed at the last minute for this Petition for Review in propria persona.

III. QUESTIONS TO BE DECIDED

1. Does Article 7.5 of the Health and Safety Code, including §§416-416.23 permit the Director of Developmental Services to petition for conservatorship of a non-dangerous unconserved developmentally disabled adult, who could not be involuntary conserved under the protections of the LPS act as gravely disabled, who cannot protest due to her handicap, and who has lived and survived safely in the care of responsible and willing family or friends for much of or all her life, and do so against the wishes of and without the consent of a caring available parent or friend despite §416.23, and to remove that adult child from her home on that basis and place her in a State controlled adult care facility under the control of a Regional Center?
2. Does the foregoing statute permit the Director and a Regional Center to also contest the conservatorship petition of a petitioning parent or friend in an adversarial trial proceeding contending the relative merits or advantages of the parents' or friends petition in comparison to the State's petition, while *6 they are controlling the person involuntarily in their custody in a Regional Center placement after having being denied a prior LPS detention hearing for over eleven months?
3. Does the foregoing statute including §416.9 suspend all rules of preference for conservatorship under Section 1812 of the Probate Code when there are surviving caring and objecting parents or friends, and if so, what alternative rules of preference if any should apply in their absence; does this mean for example that the Director has preference?
4. Does the foregoing statute permit a Regional Center to nominate the Director for conservatorship, either as an alleged "friend" or any other party so qualified to do so, under Section 415.5?
5. Can the nominating procedure of §416.5 be circumvented by the procedure of §416.9 (direct petition of Director) in such cases where there are responsible caring surviving parents or family members willing to care for the person and who object, when the person is a previously unconserved adult?
6. Can an adult developmentally disabled person who is not a danger to herself or others and had no mental disability other than retardation live as a nonprotesting dependent adult with her caring responsible family or others after the age of maturity without the necessity of being conserved by them being imposed by the State through competing petitions?
7. Can a probate Court appoint an adversarial public defender to represent an unconserved adult proposed conservatee under §§1470-1472 of the Probate code, who is unable to object to her representation due to her handicap, if that person's parents or friends can afford to provide a more effective private counsel for her and are willing to do so, and object to that public defender's ineffective or abusive misrepresentation?
*7 8. Can such a public defender impose ineffective or abusive misrepresentation upon her adult developmentally disabled client if such a person is unable to protest her misrepresentation due to her handicap, for example, that advocates for his client to be involuntarily conserved by the State without the protections of the LPS act or any finding of grave disability and denied her right to a jury trial on the issue of her liberty rights and waives her rights to due process provisions; does the Court not have a strong responsibility and mandate to disqualify such a public defender and permit him when petitioned to be replaced by competent private counsel provided by the parents or friends?
9. How far can such an attorney go in abusing his client's interests in a Court proceeding, if the person is unable to protest or understand the proceedings due to her handicap, before the court has an absolute and unwaivable duty to remove him, and who has the better right to speak for such a person or represent her interests?
10. Can such an attorney deny his client who is unable to protest the right to a jury trial on the issue of whether she is to be conserved by the State, in preference to caring surviving parents or relatives' conservatorship?
11. Does a person have a distinctly greater liberty interest in being conserved by a State in institutional care rather than being conserved by a relative or friend in a community setting, justifying the constitutional necessity for always granting a jury demand by a third party or next friend other than the public defender when the State is a contender, in the event that an express written waiver by the client cannot be obtained due to that person being unable to understand the proceedings or consent to waive those rights?
12. Does a State conservator's rights to suspend all legal and civil rights of a *8 conservatee for an indefinite period under its granted powers authorize it to deny any of that person's, her family's or her parents constitutional rights as well, or do constitutional guarantees survive the conservatorship process?
13. Are Regional Center programs compulsory or mandatory for developmentally disabled persons within their catchment areas, or do caring parents have a right to opt their children out of such programs that they feel are abusive, inappropriate, harmful or violative of their principles, without fearing a report by the Regional Center to Child Protective Services or Adult Protective Services, and do those parental rights survive the age of maturity when a person is severely autistic or retarded and cannot render or express such choices herself and lives unconserved with parents or family members? Is this analogous to the rights of parents to direct the care and upbringing of their children in making choices for them in education or other vital interests?

IV. PUBLIC POLICY ISSUES

This is a matter of statewide importance that is likely to continue to come up again as the State and counties grapple with a budget crisis and tries to shift the burden to the Federal government through grants for institutional care rather than more economical State funded support of families. Olmstead provisions are mandating the closing of State Hospitals ("Development Centers"), while the Schwartzenegger administration has proposed that the civil rights of handicapped perse ns guaranteed by the Lanterman Act be suspended as a cost cutting measure and to suspend In Home Support Services to families.
One root cause is that there is an epidemic of autism in the State and country. There has been an almost threefold increase in the number of reported autism cases between 1987 to 1998, according to an October, 2002 *9 State study. The State has recognized a crisis of mushrooming incidences of this mental disorder in the increasing referrals to Regional Centers. A $1M study was authorized by the Legislature seeking the best knowledge concerning the causes of this epidemic. The etiology of this illness is yet unknown, and the reasons for its exponential increase is mysterious as well. One leading suspect is the mercury preservative thiomucase found to have been used in childhood vaccines mandated to be given to children at age 18 months.
Such persons are often non-dangerous and non-mentaily disordered and no harm to the public, especially when raised in loving caring families and not exposed to maladaptive behavior disorders in group settings.
The State's resources cannot continue to keep up with the costs of providing for such persons while maintaining their constitutional and legal rights, as we require them to be respected. These persons do not fall under the umbrella of the Lanterman-Petris-Short act as gravely disabled persons having a mental disorder, by virtue of being mentally retarded alone. Parents struggle to keep up with their childrens' demands while cash strapped and mismanaged Regional Center programs often do not provide sufficient help.
The State has an public policy interest in making use of as many of these caring families as possible as economical and caring providers for services the State would undoubtedly have to pay far more for and is often unwilling or unable to provide. These families must be the backbone of this system, in preference to institutional care, when they are able and willing to provide such services themselves.
Families have a traditionally protected and constitutionally respected role in our society due to their permanence and reliability. Many parents *10 passionately believe that their children deserve the maximum degree of freedom and independence that they are able to achieve, and the State has a responsibility to reward rather than punish their efforts to care for such individuals humanely at home in an inclusive environment in the community, as required by Federal and State civil rights mandates. A family that cares for a developmentally disabled person is very special, and deserves the support of the State. A developmentally disabled person needs most of all the comfort, love and affection of a family environment as among the remaining pleasures that they can truly enjoy in life without limitation. The unfortunate situation of these families and children should not be made more miserable by overbearing State interference from Regional Centers and their putative "professionals" on the excuse of protection or professional responsibility.
It is important for this Supreme Court to make a policy statement that non-dangerous and not mentally disordered developmentally disabled persons deserve the right to live in their families and inclusive communities unmolested by State agencies interested in collecting as many conserved clients as possible to claim State and Federal funding, and the right not be anachronistically shut away in State facilities where they can make the State hundreds of thousands of dollars in Federal grants, whereas the families can expect no more than a few thousand dollars from the government in care by the family. In the end we all have to pay whether it is a State or a Federal agency and family care is a great bargain for the State and for the family members as well.
Now a routine search for attorneys has uncovered another case like this one in the LA area, where attorneys for a Regional Center there are; petitioning for the removal of another developmentally disabled person from the custody *11 and control of the parents for DDS under the Hlth.& S. §416 umbrella, which suggests that a wider search would uncover many more cases like the instant case which could easily evade review. This is why this Court must make a policy statement regarding this statute soon to prevent this abuse of the law against non-dangerous developmentally disabled family members from becoming widespread, allegedly for their own benefit [FN1].

FN1. It is often overquoted, but never overstated, in the words of Justice Brandeis: that, "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding. " - Justice Louis D. Brandeis dissenting, Olmstead v. United States

Institutional care is not beneficial for autism; there is no known medical treatment, as for LPS mental disorders such as schizophrenia. In the case of autistic, retarded adults, progress in State confines is much slower, because of relative lack of individual attention, relatively stultifying lack of cultural exposure and experience, and pervasive segregation, on the basis of disability, from the norm. Their best opportunities for progress and personal enrichment lie in the community, well integrated among normal role models, and having constant attention and guidance from caring families giving and seeking individualized help and cutting edge health care for them, at their own direction rather than in mass State directed care. When Regional Centers offer appropriate and beneficial community oriented mainstream programs, parents or caregivers should be enabled to utilize these opportunities without coercion.

*12 V. ARGUMENT

A. THE STATE MAY NOT PETITION FOR CONSERVATORSHIP OF THE DIRECTOR OF

DEVELOPMENTAL SERVICES OVER THE OBJECTIONS OF A CARING SURVIVING PARENT UNDER

HEALTH & SAFETY §416, ET SEQ.

The State's Petition for Conservatorship of Maria Luisa Faustino relies upon the provisions of California Health and Safety Code §416-416.23 [FN2], Conservatorship by the Director of California Department of Developmental Services (DDS). Section 416 et seq provides that the Director of DDS may be appointed as Conservator of a developmentally disabled person [FN3] under specific procedures. The provisions of this statute, particularly §416.23 [FN4] and prior rulings such as Belling, supra5, make it clear that the Director's actions in the instant case are unqualifiedly prohibited by law in instances such as this. The Director's petition was objected to by the Petitioner in her appeal on these and other grounds.

FN2. Unless otherwise specified, all code sections cited hereafter refer

to the California Health and Safety Code.

FN3. §416.23: "The Director of Developmental Services may be appointed as either guardian or conservator of the person and estate, or person or estate, of any developmentally disabled person, who is either of the following: (1) Eligible for the services of a regional center....

FN4. §416.23: Care and treatment of developmentally disabled person; consent of parent, guardian or conservator states: "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."

Now, the 6th District Court of Appeals has affirmed the judgment of the lower court ruling inconsistently with past opinions, overturning the essential intent of this statute. Petitioner objects to the decision of the appeals Court on the succeeding grounds and prays that it not be certified for publication.
*13 In brief, the opinion rendered by the 6th District asserting that §416.23 does not apply to unconserved retarded adults departs from past interpretations and does not fit with the legislative purposes, for reasons discussed herein. Far from being an "attempt to grasp at a mere procedural error" as argued by the State, Petitioner's objection goes to the heart of the entire statutory scheme which is intended to protect intact families from unwarranted State encroachment in precisely such situations as these.
Interpreting §416.23 to suggest that the State is authorized to interfere and inject itself into intact family situations in conservatorship contests against caring parents allegedly in the best interests of the child is a forced and capricious interpretation of the statute which can only create calamity in family rights and conservatorship law, and must be disavowed by this Court.

B. THE ALTERNATE PROCEDURE OF §416.9 DOES NOT AUTHORIZE THE STATE TO CIRCUMVENT

THE REQUIREMENTS OF §416.23 FORCING CONSERVATORSHIP UPON A DEVELOPMENTALLY

DISABLED PERSON IN THE CARE OF HER FAMILY

In opposing the Petitioner's objections to the denial of her rights to oppose the State's petition, the State cited Guardianship of R. C. supra, stating that "There are two methods by which the director may be appointed guardian of a developmentally disabled person: One method is through nomination by a parent, relative or friend of the developmentally disabled person, or through nomination by a prior guardian, or through nomination by the developmentally disabled person himself. (See Cal. Hlth. & S.Code, §416.5.) The second method by which the Director of Health may become guardian is by the director's making direct application to the court for appointment. (See Hlth. & S. §416.6; 58 Ops.Cal.Atty.Gen. 688, 690 (1975).)
*14 However §416.23 Care and treatment of developmentally disabled person; consent of parent, guardian or conservator states: "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."
Petitioner did not consent to the Director's petition, and has fought against it ceaselessly for two years, having first petitioned for Maria Luisa Faustino's conservatorship herself under Prob C §1830-1835 prior to the petition by the State under Health and Safety §416 et seq in order to continue to care for her.

C. THE FAUSTINO INTERPRETATION ERRONEOUSLY PLACED TWO STATUTORY PROCEDURES OF

HLTH. & S §416.5 AND §416.9 AT APPARENT CONFLICT, WHICH MUST NOT BE

SUSTAINED

Under the Faustino interpretation, these two methods §416.5 and §416.9 would be put at apparent statutory conflict with each other in situations such the instant case where a caring parent was available but objected. This conflict of laws would be created because §416.9 would always render §416.5 moot, since under the Faustino interpretation the Director of DDS could always proceed on his own without nomination even in such circumstances, circumventing situations where there was available a caring parent, friend or guardian who objected and was not willing to consent to the conservatorship by nominating him. That would always render the provisions of the first procedure, the nominating procedure of §416.5 moot and inapplicable.
However, Petitioner argues that the Court must apply the principle of statutory interpretation that views apparently conflicting statutes in the most harmonious light and renders them both effectiveness and applicability, and *15 not in one that views them in an irrational contradictory basis.

D. BELLING DECISION DEFINITIVELY HARMONIZES THE PREVAILING STATUTES CLARIFYING

THE ENTIRE STATUTORY SCHEME OF CONSERVATORSHIP LAWS. FAVORING THE PETITIONER

This question was definitively addressed in Bellino v. Superior Court, supra. There it was ruled that this Article 7.5 of the Health and Safety Code including §§416-416.23 was designed only for situations involving retarded children of caring parents who could no longer care for them, or situations where a retarded person was abandoned by his parents and required someone to conserve him: [FN5] By this intention, it was never meant to *16 be overused to force caring, capable, loving parents to "relinquish" their cherished retarded children, whether minor or adult, to involuntary State care against their wishes, as in the instant case. Involuntary commitment of non-dangerous and merely mentally retarded persons, who cannot be qualified as gravely disabled (Welf. & I §5008(h)(3)) under the Lanterman-Petris-Short Act (Welf. & I §§5000, et seq) (hereinafter "LPS"), against the wishes of their caring families and in defiance of the civil rights accorded to developmentally disabled citizens and their families by the Lanterman Developmental Disabilities Services Act (Welf & I §§4500, et seq) (hereinafter "Lanterman Act", to be clearly distinguished from the "LPS Act" Welf. & I. §§5000, et seq [FN6]), is not part of the long-established statutory scheme as applied here in both cases, and is constitutionally infirm for many reasons to be discussed herein.

FN5. Bellino v Superior Court of Riverside County, 137 Cal.Rptr.523, 70 Cal.App.3d 824 (1977) (Fourth Dist.),: "These statutes were enacted to relieve parents of their concern over who would take care of their developmentally disabled child when the parents are no longer able to fulfill that function. As noted in a law review article discussing these sections, the statutes were designed to respond to the "poignant and challenging question ... of the parent: 'What will happen to my retarded child when I am no longer able to care for him?' " (Legal Planning for the Mentally Retarded: The California Experience, 60 Cal.L.Rev. 438, 510.) Consequently, it is not surprising that the policy of the State Department of Public Health is 'to refuse to accept appointment as public guardian while a parent or guardian is still alive. This policy is based on the belief that the parents should continue to participate in the planning for

their retarded children so long as they are alive and able.' (6 U.C. Davis L.Rev. 40, 53); see also 60 Cal.L.Rev. 438, 510; emphasis added.) In its points and authorities, County concedes that the state will refuse to act under Health and Safety Code sections 416 et seq. (i.e., will refuse to initiate guardianship proceedings), where a parent of the developmentally disabled minor is still alive. Turning to the five petitions before us, we note that the situation in each differs radically from that which apparently inspired the enactment of the pertinent Health and Safety Code provisions. Here we are not dealing with mentally retarded children whose parents have continued to care and provide for them. Rather, we are dealing with developmentally disabled children who have been abandoned by their yet living parents. Health and Safety Code section 416.23 specifies that Article 7.5 of that code ('Conservatorship and Guardianship for Developmentally Disabled Persons') 'does not authorize the care, treatment, or supervision or any control over any developmental disabled person without the written consent of his parent or guardian ... we view the two codes as harmoniously coexisting--the former to protect the developmentally disabled person when his caring parent dies or consents, in writing, to the state's exercising control over him, while, ..., the latter covers the situation before us.

FN6. Attorneys and even judges not yet familiar with these Welf. & I code statutes often confuse the two, to considerable disadvantage in understanding issues. Generally, LPS deals with mentally ill persons, who may be involuntarily detained, whereas the Lanterman Act deals with the fundamental civil rights of developmentally disabled persons, who may not be incarcerated by virtue of being merely retarded alone.

In North Bay Regional Center v. Sherry S, supra, (hereafter NBRC) also cited by Respondent it was ruled, "the intent of this Section is that in the absence of a parent or conservator to apply for admission, the director is to be appointed for that purpose" (emphasis added). NBRC cites Welf & I §4825, which provides in part that "the admission of an adult developmentally disabled person to a state hospital ... shall be upon the application of the person's parent or conservator in accordance with the provisions of Welf & I §4653 and §4803, of Welf & I §4803 states "no adult shall be admitted to a community care facility or health facility as a developmentally disabled patient on the recommendation of a regional center, unless the regional center certifies that *17 there is no objection by the admittee, a parent, or a conservator." Failure to do so is a misdemeanor.
In 58 Ops. Atty. Gen. 688, 9-24-75, also cited by the Respondent out of context, "acting through regional centers for the developmentally disabled, the director of the state department of health ...is initially responsible for instituting requisite proceedings to establish court dependencies or public guardianships for developmentally disabled minors abandoned by their parents", (emphasis added)
North Bay Regional Center v Sherry C., supra, dealt with a different situation where there was a parent available, but Sherry C needed to be conserved in order to received desperately needed services, and the parent was either unable or unwilling to approve it.
In that case, however, the parent of Sherry C. had not been willing to continue to care for her child and showed no interest in either seeing her or being involved in her life, and so it was necessary for the Director to step in and petition under §416.9 without nomination since there was no one available to nominate him under the first statutory scheme of §416.5., and so the NBRC Court affirmed. In essence, Sherry C. was abandoned by her parents.
This situation does not apply to the instant case where Mrs. Sousa was found to be a dedicated lifelong caregiver who wished to continue to play that role in order to keep her child secure, and any desperately needed services that were alleged to be required were being provided adequately by the mother and so §416.23 applies.

*18 E. THE NOMINATING PROCEDURE REQUIRED BY HLTH. & S §416.5 OF THE

INSTANT CASE AND FAUSTINO WAS RENDERED MOOT BY THE SIXTH DISTRICT RULING AND

MUST BE DISAVOWED

§416.5 states that only three classes of persons are eligible to initiate conservatorship proceedings by the Director through nomination: a friend, a relative or parent, or the conservatee himself [FN7]. DOS was not nominated for Maria Luisa Faustino's conservatorship by any of these three, but by the Director of the SARC, Santi J. Rogers, who also nominated DOS to conserve Maria Luisa Faustino.

FN7. Health and Safety Code §416.5: "The director may be nominated by any one of the following to act as guardian or conservator for any developmentally disabled person; (1) who is or may become eligible for the services of a regional center, or (2) who is a patient in any state hospital, and who was admitted or committed to such hospital from a county served by a regional center:

"(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."

In Faustino, the 6th District construed that the Director was properly nominated in that case as a possible "friend". The State argued that Petitioner's objections were mere procedural defects and harmless error, whereas Petitioner argued that on the contrary these requirements are essential to the entire Legislative framework enacted to prohibit the Director from acting under precisely such circumstances. Clearly the Court of Appeals failed to understand the entire legislative statutory scheme of these various laws as interpreted by Bellino, NBRC and Violet C, getting lost in irrelevant procedural details without reaching the equitable result. The considerations underlying these statutes are intended to protect the conservatee's rights and *19 preserve the rights of the family under the 14th Amendment of the Constitution guaranteeing due process and equal protection of the laws.

F. CONTRARY TO THE FAUSTINO OPINION, REGIONAL CENTER NOMINATION IS SELF

NOMINATION AND CANNOT QUALIFY UNDER §416.5

Petitioner also argued that nomination by a regional center is essentially self-nomination. Respondent argued and the Court of Appeals affirmed that a Regional Center is an independent entity and therefore not the DOS itself for purposes of nomination. Again, rather than being a mere procedural error it goes to the heart of the controversy.
San Andreas Regional Center like all regional centers in spite of the appearance of being an independent private non-profit corporation, is the self-described "acting arm" of DOS in all limited conservatorship proceedings, empowered to act on behalf of DOS as the acting conservator upon appointment, and therefore not an independent entity for purposes of limited conservatorship. There cannot, as a matter of convenience to the Regional Center be one claim, to be a real party with a unity of interest when it comes to being DDS's local agent in the administration of a conservatorship, and another claim not to be a separate party for the purpose of nominating DOS. That adds weight to the view the Legislature saw fit to establish a limited list of qualified parties empowered to voluntarily initiate such an action when needed that did not include a Regional Center, seeing the potential for such abuses of process as these.

*20 G. A REGIONAL CENTER OR ITS DIRECTOR CANNOT BE CONSTRUED TO QUALIFY AS

A "FRIEND" FOR PURPOSES OF NOMINATION UNDER HLTH. & S §416.5 AS RULED IN

FAUSTINO, AND SUCH NOMINATION IS NECESSARY WHEN A CARING PARENT IS AVAILABLE

The State opposed Petitioner's objections and the Court of Appeals affirmed, "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".
Statutory meanings are to be construed in their ordinary sense. Mover v. Workmen's Como. Appeals Bd. 110 Cal.Rptr. 144 Cal. 1973. "Courtis required to give effect to statutes according to usual, ordinary import of language employed in framing them". The Legislature is presumed to be capable of defining special meanings when it deems necessary. If the Legislature meant to include Regional Centers in it's list of authorized nominees, §416.5 would have said "Regional Centers". It did not choose to do so.
In fact, the "friend" was not a staff worker as presumed, nor the Regional Center, but the Director Santi J. Rogers himself, who never even once met Maria Luisa Faustino and whom Maria Luisa Faustino does not know, in contrast to Mrs. Sousa's claim as a next friend to Luisa having dedicated 32 years as her parent. The Sixth District Court In its ruling avoided that inconvenient detail in its opinion. It is a stretch to argue that a stranger can claim to be acting as your friend without your choosing him to do so. In fact the Court of Appeals statement is merely presuming that such "friends" could be involved in the nominating procedure. But that is different from *21 concluding that someone from the Regional center did nominate the Director, and this in a roundabout way presumes rather than asserts facts not in evidence. When other parties explicitly stated in the list of qualified nominees such as a mother such as Mrs. Sousa do in fact exist and object, it is not acceptable to merely presume unspecified or conceivable others who do not object by straining definitions of "friend" in order to reach the desired outcome [FN8].

FN8. We urge the Court to view with a critical eye in Faustino the fact that the alleged friend, if he or she does in fact exist rather than being presumed by the Sixth District Court, did not actually nominate the DOS

Director, suggesting that such a friend was unwilling to perform this task for some reason. If that friend did exist, wouldn't it have been simple for the State to have done it this way and avoided all these issues by complying with the statutory nominating procedure? All the State would have had to do would to simply have found one friend willing to nominate them, and that would not seem to be an unreasonable burden under compelling circumstances. The fact is that no friend of Maria Luisa Faustino's who knew the family well existed that did not admire the way she was being cared for by her parents, and the only advocates of her conservatorship were the Regional Center bureaucrats few if any of whom had ever met her or her family prior to their action.

H. DPS INFERRED THAT NOMINATION WAS NECESSARY IN THE MANNER IN WHICH THEY

PROCEEDED ON THE BASIS OF §416.5 IN FAUSTINO, AND THEN PROCEEDED ALONG

§416.9 ALLEGING IT TO BE UNNECESSARY.

The State then contended in Petitioner's case that as long as the Director was made aware of this matter he could now petition without nomination, claiming an alternate procedure voiding the need for a nomination under CA Hlth. & S §416.9. DOS also supported this argument from the case Guardianship of Smith, 100 Cal.App.3d 882 (1980). However, Smith, supra is inapplicable here, that being an argument between a county and the State, not between a parent and the State, and not done over the objections of an available parent contrary to Hlth. & S. §416.23 because in the Smith case *22 these persons were abandoned and the County Public Guardian sought to shift the burden to the Director.
This also leaves the point, if the Director of DOS did not feel it to be necessary to be nominated anyway and intended to proceed under §416.9, then why did the Regional Center Director Rogers feel it necessary to nominate him in the first place, specifically referring to §416.5 in his nominating letter? Once again, these distinctions are not mere harmless procedural error but go to the heart of the legislative intent and the entire statutory scheme of conservatorship laws designed to protect intact families from needless State encroachment.

I. SIXTH DISTRICT INTERPRETATION OF §416.23 IS AGAINST THE STATUTE AND IS A

FORCED INTERPRETATION THAT SHOULD BE DISAVOWED

Mrs. Sousa argued that §416.23 prohibits the Director's petition. The Sixth District disagreed, stating that, "...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 Faustino." Re-reading §416.23 again such an interpretation cannot be found in the statute, nor was any case cited to support its theory. This opinion give no clue as to its reasoning. Nor does it comport with the Legislative intent that we have been discussing, to retain the services of parents5 cited "This policy is based on the belief that the parents should continue to participate in the planning for their retarded children so long as they are alive and able." (6 U.C. Davis L.Rev. 40, 53; see also 60 Cal.L.Rev. 438, 510; emphasis added.) §416.23 does not specify whether the child is a minor child or an adult child, but merely a developmentally disabled person. It does not contemplate any dependence upon the age of the parent *23 or the age of the child, as expressed in this policy, going right up to the death or inability of the parent to care, which could normally go beyond the age of theoretical emancipation of the child. And this is long standing sound social, policy as well, since the impersonal state has always been viewed as the parent of last resort, even in the doctrine of parens patria.
By conserving Faustino over the competing petition for conservatorship of her mother, the State is merely asserting emancipation away from the control of her lifelong caring parent and "dis-emancipating" her under the control and conservatorship of the State, under the aegis of an impersonal State agency run by soulless bureaucrats who constantly turn over in their positions and whose highest instinct is self-preservation. This is a statist view that the Legislature wisely declined in favor of the lifelong caring parent normally presumed to have a greater interest and investment in the upbringing and proper caring for her child.
The fact that Luisa Faustino has achieved the theoretical age of maturity does not in her case make her magically able to exercise informed mature judgment, as shown by the fact that everyone agrees that she needs someone to make these decisions for her. However the principal claim of the State is that Luisa according to her regional center paid caregivers now wishes to make these decisions herself as a legally independent emancipated adult and therefore they must conserve her by removing ail her civil rights in order to facilitate her ability to do so.
When Luisa's mother acts as a wise parent exercising discretion over her daughter's immature judgment, the mother is supposedly infringing on her daughter's legally independent rights, but when the State does the same thing it is supposedly encouraging independence and self-reliance, merely because *24 they say so. This is a basic cognitive dissonance which apparently did not disturb the Court of Appeals but which must be brought into clearer focus.
Applied to any parents of a normal teenager, this reasoning could as easily be employed to vitiate all parental rights in favor of State institutions, undoubtedly a boon to State institutions but not to the general society. The State recognizes this by claiming the need to conserve Luisa themselves, but they deny that same viewpoint to the mother.
The only conclusion than preserves the equitable result is that in such instances parental rights must survive the nominal age of maturity through conservatorship, and the Probate Codes provide for that by preferring the family to the State under Probate Code §1812. The Director cannot simply impose Health and Safety §416.9 to undermine that order of preference in the instance of an intact extended family.

J. BELLING RATHER THAN FAUSTINO INTERPRETATION OF §416.23 HARMONIZES THE

ENTIRE SCHEME OF §416 ET SEQ INCLUDING §416.5, §416.9, WELF & I §4500

ET SEQ, (LANTERMAN ACT), AND PROB. C. §1812

The analysis of statutory construction in the previous section against the Faustino interpretation of §416.23 is not confined to the interpretation of just this one section in isolation from all the others, but fits with the entire scheme of these laws and cases demonstrating the Legislative long established intent to grant caring families priority over the State in conserving adults. The fact that Mrs. Sousa failed to conserve her daughter prior to the challenge from DOS is a meaningless oversight caused by the practical fact that dependent adults living happily in their families with caring parents do not normally need to be conserved merely because they are dependent, and the State ordinarily *25 has no need to inject itself in the domain of such a family and second guess a parent who is constantly present and much more intimately familiar with the circumstances of his family than any state agency, without an exceptionally high standard of necessity, due to fundamental constitutional rights accorded to parents and families without undue interference.

K. NON-COMPLIANCE WITH THE STATUTORY NOMINATING PROCEDURE OF HLTH. & S

§416.5 AS INTERPRETED BY FAUSTINO IS BAD SOCIAL POLICY AND AGAINST

LEGISLATIVE INTENT AND MUST BE DISAVOWED

The entire Legislative purpose for establishing a nominating procedure in §416.5 must be interpreted as having been necessitated by the intention to define and limit standing to initiate such proceedings only to specific classes of parties whose legitimate interests are felt sufficient to statutorily empower them, in cases where such parties are available and willing to do so. Otherwise, the statute would be rendered moot in any such circumstances. As reaffirmed in Bellino, supra, laws must be interpreted to harmonize, rather than be in conflict. We must assume that the legislature intended to enact a law in §416.5 that was not moot, and that this statute has some purpose to safeguard abuses of process such as these. The purpose of this section therefore must be plainly interpreted to apply when such persons were not available. In the instant case exactly such parties do exist, and it is not necessary to force definitions in order to create new ones.
The social policy danger that exists if Faustino is affirmed as law is that the State through its Regional Centers could conceivably round up increasing numbers of clients of the Regional Centers whose parents refused or limited services that Regional Center paid staff "professionals" deemed necessary *26 over the objections of parents. The Regional Center could be motivated to do that by enforcing their recommendations against parents that did not meekly cooperate with any services that were recommended, in their self-serving zeal to promote their activities over increasing parental resistance and disfavor, and to frankly rake in more State and Federal monies during a budget crunch without having to provide services that were effective or useful [FN9].

FN9. The defect here is that Regional Centers are like what PG&E and Ma Bell used to be and cable providers still are, monopolies over persons within their catchment areas without any market pressures to accommodate "consumers" despite the mercantile sounding terminology of the Lanterman Act. This has the effect of turning the client and his family from a dominant position choosing what is best for themselves into a submissive position at the discretion of the over-broad category of "professionals" touted by SARC. The selection of the term "client" or "consumer" for the developmentally disabled person suggests the former rather than the latter intent by the Legislature.

If Faustino were affirmed as law, upsetting precedent, the courts would be choked with other such cases sustained by the impression that Faustino gave them permission to proceed to conserve community-inclusive retarded children of caring families that were "non-compliant" or "inappropriate", unless quickly dispelled [FN10].

FN10. Other cases have been discovered where the parents were simply unable to fight the Regional Centers and their armies of compliant salaried social workers, and had to give up because it was just too hard and few parents or ordinary means have the resources to fight a protracted battle with the State and its unlimited resources.

In the instant case, parents should have discretion to view such programs as inappropriate or harmful for several reasons that qualify them as the best judges of their effectiveness. The Regional Centers would certainly be interested in making their programs compulsory under the law for developmentally disabled persons, notwithstanding their mandates under the Lanterman Act, believing fervently in the certitude of their professional judgment of what is best for their clients

*27 L. PROBLEMS WITH INTERPRETATION OF THE ORDER OF PREFERENCE IN HLTH. & S

§416.9 MUST BE RESOLVED BY THE COURT IN FAVOR OF FAMILY RATHER THAN THE

STATE

§416.9 states, "The order of preference established in Section 1812 of the Probate Code for appointment of a conservator shall not apply [FN11]". Prob. C. §1812 establishes that relatives, friends and parents have priority over State Agencies such as DOS. But this is inoperable law, since while it makes inapplicable this order of preference, it leaves vacant the question of which alternative order of preference, or any order of preference, should replace it. Should DOS by this statute have first priority over families by §416.9? Or should there be no priority or equal priority? Which standards should this Court apply in its absence? No court is free to presume without authority or precedent, and the statute is mute on this question.

FN11. Prob C §1812(b) "Subject to Sections 1810 and 1813, of persons equally qualified in the opinion of the court to appointment as conservator of the person or estate or both, preference is to be given in the following order: (1) The spouse or domestic partner of the proposed conservatee or the person nominated by the spouse or domestic partner pursuant to Section 1811 (2) An adult child of the proposed conservatee or the person nominated by the child pursuant to Section 1811. (3) A parent of the proposed conservatee or the person nominated by the parent pursuant to Section 1811. (4) A brother or sister of the proposed conservatee or the person nominated by the brother or sister pursuant to Section 1811 (5) Any other person or entity eligible for appointment as a conservator under this code or, if there is no person or entity willing to act as a conservator, under

the Welfare and Institutions Code.

A more distressing confusion lies in the fact that Petitioner petitioned for conservatorship of her daughter under the provisions of the Probate Code including Prob. C. §1812 which provides for an order of preference leaving the State last in line among equally qualified petitioners, behind parents and family, yet the State petitioned under Health and Safety Code §416.9, which expressly vacates these preferences, yet the petitions were heard in a *28 contested conservatorship in which both petitions were considered at the same time. So which rule should apply? Can the State at any time they wish simply vitiate the entire framework of the Conservatorship provisions of the Probate Code, claiming priority under Health and Safety Code Article 7.5?
Furthermore, what consideration has been given to the large and extended family of Luisa Faustino in considering any other alternative to State conservatorship, and if no consideration was given, why net? Was the trial court so intolerant of any Petitioner than the State that it could not consider another family member of the many that testified to their willingness to care for Luisa, and if it was what does that say about the neutrality of the trial court to render a fair trial? Should the provisions of §416.9 deny family members their rights to the care and protection of their developmental disabled relative despite the provisions of Prob C §1812 as well?
The behavior of the trial court in avoiding any other family member's qualifications and appointing an adversarial attorney for Luisa lends weight to the natural suspicion that the pecuniary interest of the Regional Centers strongly influenced the decisions of the trial court.
This apparent conflict of laws can only be harmonized by giving weight to the view that the Legislature never intended the State to contest with surviving caring parents or families for Conservatorship of their children under §416 and explicitly and unambiguously said so under §416.23. This Legislative intention to the scheme of laws involving conservatorships cannot be belittled as a simple little procedural defect but an important concept fundamental to the entire framework.

*29 M. MOTHER'S CONTROL OF HER DEVELOPMENTALLY DISABLED DAUGHTER IS THAT OF

A WISE PARENT EXERCISING DILIGENT SUPERVISION AND DISCRETION AND MUST NOT BE

CHALLENGED

Mrs. Sousa has cooperated with the Regional Center's activities for 11 years. No one contested the fact that Luisa was well treated in her mother's care, and her mother's devotion to Luisa and her desire to protect her are undisputed. The crux of Mrs. Sousa's concern in petitioning for conservatorship of her daughter was that while she shared the Regional Center's goal for her daughter's greater independence and self reliance, the unadorned reality was that Faustino still functioned at the level of a very young child who could not be relied upon to make appropriate choices for herself. These admirable goals shared by the family were in fact still very far away as would be the case for anyone functioning at the level of a minor child. The Regional Center attacked Mrs. Faustino for her alleged "interference" with her child's choices. However, if Luisa wanted to drive a car or smoke cigarettes, Mrs. Sousa testified that nobody would argue that it would be prudent to allow her to do so merely because she wished it. Mrs. Faustino told the trial court that Luisa would sign anything that the Regional Center put in front of her potentially against her better interests without anyone informing her mother, and was easily subject to undue influence to make unreliable statements and immature choices.
Mrs. Sousa acting as a wise caring parent contended that whatever choices Luisa made on her own could not be reliably construed as informed choice and therefore despite her chronological adulthood Luisa *30 required continuing parental supervision for Luisa's own protection. Such supervision is the duty of any responsible parent. Parents of minor children can be hailed into court for not exercising such responsibilities over them. No one contested that a conservatorship was needed for adult child Luisa for these reasons. The only question remaining was who should conserve her and make those choices for her, the family or the State.

N. AN ORDER OF PREFERENCE IN FAVOR OF FAMILY ALREADY EXISTS TO FILL THE VACUUM

OF §416.5 IN FEDERAL AND STATE LAW AND MUST BE APPLIED HERE AND IN FAUSTINO

BY DISAVOWING THESE RULINGS

The strictures of §416.9 supposedly vitiating the special provisions of Prob C §1812 leaves mute the question of which order or any order of preference to the family is to remain. However, Federal and State Law and ruling Supreme Court precedents are not mute on this issue. Welf. & I §4685 et seq states unequivocally the Legislative intent as favoring families over institutions for care of developmentally disabled children [FN12], and requires Regional Centers to "consider every possible way to assist families in maintaining their children at home" (Welf. & I. §4685(c)(2)). The Legislature is here clearly stating a doctrine to be accepted by Regional Centers that runs *31 counter to "institutional bias", the objected-to presumption of fitness by institutions rather than families which runs counter to ordinary experience and history. Welf. & I. §4825 defines the role of the parents or conservator further [FN13].

FN12. Welf. & I. §4685(a): "Consistent with state and federal law, the Legislature finds and declares that children with developmental disabilities most often have greater opportunities for educational and social growth when they live with their families. The Legislature further finds and declares that the cost of providing necessary services and supports which enable a child with developmental disabilities to live at

home is typically equal to or lower than the cost of providing out-of-home placement. The Legislature places a high priority on providing opportunities for children with developmental disabilities to live with their families, when living at home is the preferred objective in the child's individual program plan."

FN13. "Notwithstanding the provisions of Section 6000, the admission of an adult developmentally disabled person to a state hospital or private institution shall be upon the application of the person's parent or conservator in accordance with the provisions of Sections 4653 and 4803"

While in the instant case, the Regional Center alleges In it's trial testimony to have no present interest in an institutional placement, the petition includes a request for the powers to piace Maria Luisa Faustino in a setting including a state hospital (euphemistically called "developmental center"), and if given these powers as requested, they would have a strong if not unchallengeable right to do so without effective intervention being available to her and will not commit to any specific future plan for Luisa after conservatorship, claiming their rights under usage of their powers after appointment.

O. PARENTS FUNDAMENTAL RIGHTS TO THE CONTROL AND UPBRINGING OF THEIR CHILDREN

MUST EXTEND TO SEVERELY RETARDED ADULT CHILDREN UNDER THEIR CARE ACCORDING TO

THEIR DISCRETION.

This case represents intimidation to force caring, concerned parents to accept services from a Regional Center that they may deem inappropriate or even harmful in their judgment, by alleging in effect that fit parents do not remove children from Regional Center services which are offered, and making these services compulsory in effect by automatically reporting such parents to *32 Adult Protective Services or Child Protective Services.
This situation fits exactly within the bounds of this instant case. We do not know of a precedent for this particular constitutional matter, but it does raise issues going back to Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary 45 S.Ct. 571 U.S. (1925); in which it was ruled that fit parents have a constitutionally asserted fundamental liberty interest in the direction of the upbringing and care of their children, in opting out of mandatory public schools in favor of parochial and other forms of schooling.

P. PARENTAL CARE MUST BE PRESUMED TO BE PREFERABLE TO STATE CARE.

In Parham v. JR 442 U.S. 584, 602 (1979) it was ruled that "there is a presumption that fit parents normally act in the best interests of their children", and "so long as the parent adequately cares for his or her children, there will normally be no reason for the state to inject itself into the private realm of the familly to further question the ability of the parent to make the best decisions concerning the rearing of the parent's children". These principles were recently reasserted in the Supreme Court decision, Troxel v. Granville 137 Wash. 2d 1, 969 p.2d.
In the instant case Mrs. Faustino has cared for Luisa consistently and competently for her entire life despite numerous hardships, and has proven her fitness as a parent beyond a reasonable doubt by raising five other children into adulthood who have gone on to lead successful and productive lives and have maintained close family relationships with the mother [FN14]. The Court has *33 agreed that Luisa is a non-violent developmentally disabled adult who is of no harm to herself or others, and therefore that these principles apply.

FN14. An immigrant from Portugal, Mrs. Faustino has also proven her abilities as a caregiver by running a foster care and day care program of her own for over ten children at a time for 11 years and was foster mother for two retarded girls. Widowed at a young age with several children to support, she worked for many years as a pre-school teacher, and nonetheless went back to finish high school, sent herself to college majoring in Early Education. No one has ever found that she is an unfit parent. She is in fact a model parent.

Q.DIRECTOR'S PETITION JUSTIFIES LUISA'S CONSERVATORSHIP THROUGH INCORRECT

APPLICATION OF LAWS AND CASES AND IS THUS DEFECTIVE ON ITS FACE

The Director's petition (Exhibit B p 44) incorrectly purports to justify her conservatorship claiming that Luisa is "gravely disabled" by virtue of developmental disability, disregarding the absolute prohibitions from this category of Welf. & I. §5250(d)(1) [FN15] and Well & I. §5008(h)(3) [FN16]. This claim of "grave disability" inappropriately purports to justify involuntarily conserving Luisa over the objections of her mother under the LPS act as having a mental illness or being a harm to herself or others. The citation of North Bay Regional Center v Sherry C, supra and In Re Violet C, supra in this petition as justifications are also spurious because Mrs. Sousa's participation leaves no doubt that the parent is hardly unavailable and Luisa is not abandoned as regarded in these cases. The trial did not inquire or find that Luisa was gravely disabled. The DOS attorney-drafter of this petition thus demonstrates complete and total ignorance of the cases and statutes he is citing and a basic incomprehension of the different roles they play in the statutory scheme that is essential to a *34 protection of her fundamental due process rights.

FN15. Welf, & I. §5250(d)(1)..." a person is not 'gravely disabled' if that person can survive safely without involuntary detention with the help

of responsible family, friends, or others who are both willing and able to help provide for the person's basic personal needs for food, clothing, or shelter."

FN16. Welf. & I. §5008(h)(3): "The term 'gravely disabled' does not include mentally retarded persons by reason of being mentally retarded alone."

R. STATE MAY NOT CONSTITUTIONALLY IMPOSE UNNECESSARY CONSERVATORSHIP UPON

DEVELOPMENTALLY DISABLED PERSON WHO IS NOT GRAVELY DISABLED, NOR DANGEROUS,

NOR MENTALLY ILL, AND LIVING WITH WILLING AND RESPONSIBLE FAMILY OR FRIENDS

Maria Luisa Faustino is entitled to at least as much protection from involuntary conservatorship as someone falling under the protections of the LPS act. The mere fact that she is NOT gravely disabled should not disqualify her from these protections, it should enhance her protections. The court attempted to achieve through the limited conservatorship procedure what it could not have achieved through the LPS act. If Luisa were tried for grave disability under the LPS act, she would have been found not to be gravely disabled and therefore could not have been conserved. Why then can she be conserved under the Lanterman act and the provisions of the Probate Code, which is supposed to guarantee civil rights of merely disabled persons?
Maria Luisa Faustino was never conserved before and there was no compelling reason to do so as a merely dependent adult living happily and safely in her family. Persons who are developmentally disabled and living with their families without protest do not normally need to be conserved even as an adult, merely because they are developmentally disabled or dependent upon their families. There is no mandate in the Probate code that can be found requiring that such persons be conserved merely because they are dependents and cannot safely on their own provide for themselves the *35 necessities of life, see Conservatorship of Early, 35 Cal.3d 244, 673 P.2d 209, 197 Cal.Rptr. 539, Cal. (1983), Conservatorship of Davis, 124 Cal.App.3d 313, 177 Cal.Rptr. 369, Cal.App. 2 Dist., (1981), Conservatorship of Wilson, 137 Cal.App.3d 132, 186 Cal.Rptr. 748, Cal.App. 4 Dist, (1982), and again O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396, U.S.FIa (1975) which inspired these State decisions
Therefore by an equal protection analysis, it is unconstitutional error under the Fourteenth Amendment for a State to deny the same protections of the due process against involuntary Conservatorship by the State afforded to individuals protected under the LPS Act alleged to be gravely disabled to those merely retarded persons living with their families and NOT gravely disabled, lacking a compelling state interest to discriminate against such persons.

S. DANNER'S RULINGS AND SARC VIOLATE MARIA LUISA FAUSTINO'S MOST BASIC CIVIL

RIGHTS AS MANDATED BY FEDERAL LAW

Luisa Faustino currently resides with her mother and her rights to contact with her family have not yet been restricted. However, DDS's Conservatorship powers provide that these rights can be suspended for an indefinite period without notice, and this has been the typical progression of such events in the past under regional center conservatorships [FN17].

FN17. Representatives from the Regional center argued in these hearings that they felt impelled to act influenced by the "typical" case where the parent abandoned the child.

Whatever rights Luisa or her family still have that require a court hearing could easily be removed by a 15 minute hearing in Superior Court. This is simple in comparison to effort that the State has already demonstrated its *36 willingness to persevere in its two year long undertaking in obtaining conservatorship over the competing petition of a caring competent parent. Effective opposition to these decisions by the parents have now all but been removed. Mrs. Faustino will have no right to decide where her daughter should live or whom she would socialize with, or even whether she can continue to see her daughter [FN18].

FN18. Luisa could even be sterilized for example with little effective opposition, or be given psychotropic medications with a simple court order merely on the testimony of a SARC staff psychologist acting under their control, or be refused any medical records concerning her condition if she becomes ill.

Mrs. Sousa is only one short step away from losing all contact with Luisa if the State decides that it fits their convenience, and there is very little that she could do to stop it. This threatens a violation of both the family's and the conservatee's basic constitutional rights of freedom of association and liberty interests guaranteed by both Federal and State Laws requiring the pre-emptive declaratory relief of this Court.
In addition to her constitutional rights and the Federal laws enforcing Title II of the ADA following Olmstead. supra, Congress has specified a Federal Mandate to protect the basic civil rights of developmentaily disabled persons under 42 USC 6009, now codified under Title I, Part A, Sec.110, PL 98- 527 (HR 5603) [FN19] which are threatened by this decision. Specifically, this *37 forbids the exclusion of "close relatives of such persons to visit the at reasonable hours without prior notice (§101(3)(b)(v)), and mandates the right to "appropriate and sufficient medical and dental services" (§101(3)(b)(ii)) and prohibition of excessive physical or chemical restraints ((§101(3)(b)(iv)), (§101 (3)(b)(iii)), It also mandates the all services "should be provided in the setting that is least restrictive of the person's personal liberty. Least restrictive must be interpreted as being the most home-like setting possible and there is no setting more homelike than a parent's home. Least restrictive does not mean the granting off all powers to the State except as a last resort.

FN19. Title I, Part A, Sec. 110, PL 98-527 (HR 5603) "Congress makes the following findings respecting the rights of persons with developmental disabilities

"(1) [Individuals] with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities.

"(2) The treatment, services, and habilitation for a person with developmental disabilities should be designed to maximize the developmental potential of the [individual] and should be provided in the setting that is least restrictive of the [individual's] personal liberty.

"(3) The Federal Government and the States both have an obligation to assure that public funds are not provided to any institutional or other residential program for [individuals] with developmental disabilities that--

"(A) does not provide treatment, services, and habilitation which is

appropriate to the needs of such [individuals]; or

"(B) does not meet the following minimum standards:

"(i) Provision of a nourishing, well-balanced daily diet to the [individuals] with developmental disabilities being served by the program.

"(ii) Provision to such [individuals] of appropriate and sufficient medical and dental services.

"(iii) Prohibition of the use of physical restraint on such [individual] unless absolutely necessary and prohibition of the use of such restraint as a punishment or as a substitute for a habilitation program.

"(iv) Prohibition on the excessive use of chemical restraints on such [individuals] and the use of such restraints as punishment or as a substitute for habilitation program or in quantities that interfere with services, treatment, or habilitation for such persons.

"(v) Permission for close relatives of such [individuals] to visit them at reasonable hours without prior notice.

... The rights of [individuals] with developmental disabilities described in findings made in this section are in addition to any constitutional or other rights otherwise afforded to all persons.

SARC workers tout that Luisa is now able to socialize with her "peers" in regional center programs advocating that this is in her best interests, but that is merely coded speech saying that she should be segregated according to her disability in contact primarily with other retarded people, in direct contradictions to the dicta of Olmstead, supra. In the care of her family, she is constantly in *38 the community at large, in an integrated setting and not "segregated according to disability" in violation of Title II of the Americans with Disabilities Act.

T. DANNER'S RULINGS AND SARC VIOLATE MARIA LUISA FAUSTINO'S MOST BASIC CIVIL

RIGHTS AS MANDATED BY STATE LAW

The State statutes mandating civil rights to the developmentally disabled codified under Welf. & I §4502, §4503 (Lanterman Act) are equally clear on this as well [FN20] [FN21].

FN20. Welf. & I §4502. (emphasis added) "Persons with developmental disabilities have the same legal rights and responsibilities guaranteed all other individuals by the United States Constitution and laws and the Constitution and laws of the State of California. No otherwise qualified person by reason of having a developmental disability shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity, which receives public funds It is the intent of the Legislature that persons with developmental disabilities shall have rights including, but not limited to, the

following:

"(a) A right to treatment and habitation services and supports in the least restrictive environment. Treatment and habilitation services and supports should foster the developmental potential of the person and be directed toward the achievement of the most independent, productive, and normal lives possible. Such services shall protect the personal liberty of the individual and shall be provided with the least restrictive conditions necessary to achieve the purposes of the treatment, services, or supports.

"(b) A right to dignity, privacy, and humane care. To the maximum extent possible, treatment, services, and supports shall be provided in natural community settings.

"(c) A right to participate in an appropriate program of publicly supported education, regardless of degree of disability.

"(d) A right to prompt medical care and treatment.

(e) A right to religious freedom and practice.

"(f) A right to social interaction and participation in community activities.

"(g) A right to physical exercise and recreational opportunities.

"(h) A right to be free from harm, including unnecessary physical restraint, or isolation, excessive medication, abuse, or neglect.

"(i) A right to be free from hazardous procedures.

"(j) A right to make choices in their own lives, including, but not limited to, where and with whom they live, their relationships with people in their community, the way they spend their time, including education, employment, and leisure, the pursuit of their personal future, and program planning and implementation."

FN21. Welf. & I §4503: (emphasis added) "Each person with developmental disabilities who has been admitted or committed to a ..., community care facility as defined in Section 1502 of the Health and Safety Code, ... shall have the following rights...:

"(a) To wear his or her own clothes, to keep and use his or her own personal possessions including his or her toilet articles, and to keep and be allowed to spend a reasonable sum of his or her own money for canteen expenses and small purchases.

"(b) To have access to individual storage space for his or her private use.

"(c) To see visitors each day.

"(d) To have reasonable access to telephones, both to make and receive confidential calls.

"(e) To have ready access to letter writing materials, including stamps, and to mail and receive unopened correspondence.

"(f) To refuse electroconvulsive therapy.

"(g) To refuse behavior modification techniques which cause pain or trauma.

"(h) To refuse psychosurgery notwithstanding the provisions of Section 5325, 5326, and 5326.3....

"(i) To make choices in areas including, but not limited to, his or her daily living routines, choice of companions, leisure and social activities, and program planning and implementation.

"(j) Other rights, as specified by regulation."

*39 U. THE TRIAL COURT ACTED IMPROPERLY ALLYING ITSELF WITH THE STATE IN

APPOINTING AN ADVERSARIAL PUBLIC DEFENDER PURPORTING TO REPRESENT THE

DEVELOPMENTALLY DISABLED DAUGHTER AGAINST THE MOTHER GIVING INEFFECTIVE

ASSISTANCE OF COUNSEL TO THE CONSERVATEE

By appointing an adversarial representative to allegedly act in behalf of Mrs. Sousa's daughter, the trial court abused its discretion from the outset presuming an adversarial relationship between parent and child that had not been shown by clear and convincing evidence in the fact finding phase, in violation of the dicta of Santosky v Kramer, 102 S.Ct. 1388, in which It is stated that a child has a significant liberty interest of her own in an intact family unit barring a finding of parental unfitness. By appointing an adversarial advocate *40 for her daughter over her objections, the court allied itself from the outset with the interests of the State preventing eiher Mrs. Sousa or her daughter from having a fair trial. Acting in league with the State, he objected to a jury trial, opposed Mrs. Sousa's petition, advocated for his client to be conserved by the State, and consistently waived his client's advisement rights and due process protections against procedural defects without obtaining meaningful consent of his client, who was unable to fully understand the proceedings. It is ironic that Mr. McMillin argued before the Court of Appeals that Mrs. Sousa's appeal rested on her grasping at mere legal errors since his tactics denying his client due process rested on his misdirection of the court from such legal sleights of hand working to the distinct disfavor of the family.
While Mr. McMillin demonstrated undisputed mastery in these fine tactical legal procedural and rules to get around his obstacles, by belittling the mother's valid objections in his brief he demonstrated complete lack of basic understanding of the absolutely indispensable reasons for these procedures in protecting the constitutional due process rights of his supposed client and the roles played by the various statutory conservatorship schemes in protecting these rights.

VI. PETITION FOR JUDGMENT

Based on this Affidavit in the herein action, Petitioner seeks relief ordering judgment reversing and remanding the Court of Appeals decision to affirm the Petition of the State DOS for Limited Conservatorship of Maria Luisa Faustino under Hlth, & S §416 et seq as based on erroneous application of law as set forth in the arguments presented in the herein Petition for Review, and grant conservatorship to the family or to the Petitioner as requested, and grant petitioner her costs for her legal expenses vacating the order of judgment that *41 she pay any or all opposing attorney expenses rendered on behalf of the State.

Appendix not available.

In re FAUSTINO, Maria Luisa Faustino Real Party in Interest.
2003 WL 23330773
END OF DOCUMENT

(C) 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.