Filed 12/16/16
                   CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                    SECOND APPELLATE DISTRICT
                             DIVISION SIX

Conservatorship of the Person               2d Civil No. B270310
of B.C.                                   (Super. Ct. No. 56-2014-
                                          00452252-PR-CP-OXN)
                                             (Ventura County)

C.S.

     Petitioner and Respondent,

v.

B.C.,

     Objector and Appellant.


              In Conservatorship of Heather W. (2016) 245
Cal.App.4th 378, 381, (Heather W.) we held that in
conservatorship proceedings under the Lanterman-Petris-Short
Act (LPS Act)1 “the trial court must obtain a personal waiver of a
jury trial from the conservatee, even when the conservatee
expresses no preference for jury trial.” We joined a growing line
of cases holding that jury waivers must be secured from
individuals facing a substantial loss of personal freedom in civil



        1   Welfare & Institutions Code section 5000 et seq.
commitment proceedings aimed at “protecting the public and
treating severely mentally ill persons.” (Heather W. at p. 383.)
               Here, the trial court appointed respondent C.S. as
probate conservator for her niece, appellant B.C., who suffered
cardiac arrest and brain damage from the combined effect of
methamphetamine and alcohol. (Prob. Code, § 1800 et seq.)2
B.C. appeals C.S.’s appointment.
               We hold that probate conservatorships do not
require a personal waiver of the conservatee’s right to a jury trial
because the proceedings pose no threat of confinement and are
conducted “according to the law and procedure relating to the
trial of civil actions, including trial by jury if demanded by the
proposed conservatee.” (§ 1827.) B.C.’s attorney had authority to
waive a jury trial on her behalf, even if the trial court failed to
recite that B.C. had a right to a jury. We also conclude that
B.C.’s opposition to C.S.’s petition was fully litigated, satisfying a
Probate Code requirement that B.C. be consulted about the
proposed conservatorship. (§ 1828, subd. (b).) Finally, the record
supports the trial court’s finding that B.C. cannot take care of her
own health needs, nor can her husband be trusted to do so.
                                 FACTS
               In 2012, at age 30, B.C. overdosed and nearly died.
The resulting lack of oxygen to her brain caused physical and
mental impairments. When stricken, B.C. was with Jesse M., by
whom she has a daughter born in 2006. The couple has a history
of methamphetamine abuse.




      2Unlabeled statutory references in this opinion are to the
Probate Code.


                                  2
             Upon release from the hospital, B.C. lived with her
mother and required 24-hour care. Initially, Jesse M. lived in the
household and helped with B.C’s care, but was evicted by B.C.’s
mother because he objected to the administration of B.C.’s
prescribed medication.
             Following the sudden death of B.C.’s mother, who
left B.C. a $450,000 inheritance, B.C. and Jesse M. were married,
in May 2014. B.C. went to live with Jesse M., who stopped
administering her medication because he felt she was more alert
without it.
             B.C. was evaluated by neuropsychologist Ines
Monguio in August 2014. Dr. Monguio determined that B.C. can
perform daily living activities, such as arising in the morning,
brushing her teeth, showering, and preparing a simple meal, but
needs care, direction and structure. Dr. Monguio observed that
B.C. seems to trust Jesse M., yet calls him her “best friend,” not
her husband, and does not know his home address.
             Testing showed that B.C. processes information very
slowly and has little ability to remember anything. Dr. Monguio
doubted whether practice would improve this severe memory
deficit. B.C. is not competent to make medical decisions and
needs assistance with her physical health as she “doesn’t have
the memory to remember from one moment to the next, much
less one day to the next.” The memory deficit makes B.C.
“vulnerable to fraud from people she trusts.”
             Dr. Monguio opined that Jesse M. is dedicated to
B.C.’s well-being, but acknowledged that (1) Jesse M. did not
hire a speech and occupational therapist, as Dr. Monguio




                                3
recommended, though money is set aside for B.C.’s medical
needs, and (2) Jesse M. admitted that he and B.C. “were partying
together,” using drugs and alcohol, when B.C. had her near-fatal
heart attack. Dr. Monguio could not say whether Jesse M. felt
guilty about the event.
             In March 2014, B.C. signed a Durable Power of
Attorney For Health Care naming Jesse M. as her agent. Jesse
M. obtained the form and had B.C. sign it before a notary. Dr.
Monguio did not know whether B.C. is able to appreciate the
risks, benefits or alternatives to naming Jesse M.
             During Dr. Monguio’s second evaluation in October
2015, B.C. seemed more relaxed, fluent and pleasant than before,
though she did not remember Dr. Monguio. B.C. expressed love
for Jesse M. and her life. Test results showed no meaningful
cognitive changes. B.C. was consistent in 2014 and 2015 that she
wanted Jesse M. to make medical decisions and assist her. Dr.
Monguio observed that B.C. “lost a significant amount of weight”
over the year.
             B.C.’s estate conservator testified that Jesse M.
took disability benefits that were supposed to be in B.C.’s estate
and refused to return the money. Jesse M. admitted at trial that
B.C. received $14,000 in disability benefits. He spent all of it on
a road trip, jewelry and “a whole new wardrobe” as “to [his]
knowledge, it had nothing to do with the [conservatorship] estate
or anything else.” He works at a liquor store and lives at his
mother’s house with B.C. and their daughter. Jesse M. has a
busy schedule, with four children from a prior relationship and
his daughter with B.C., plus he sometimes takes B.C. to visit her
12-year-old son (who lives with B.C.’s ex-husband).




                                 4
             Jesse M. did not hire a speech or occupational
therapist because it is expensive and “it might not even work” to
help B.C. He was told that an occupational therapist could be
secured for B.C. through insurance, to reduce the expense. Jesse
M. dropped the idea of therapy when MRI and EEG tests showed
normal results. He did not pursue treatment at a nearby brain
injury center suggested by B.C.’s doctor, and contended that the
onus is on B.C.’s doctors to make referral appointments. Over a
year later, he is still waiting for the doctors to call and tell him
where and when to take B.C. for treatment. He admitted fault
for not always taking B.C. to follow-up appointments with her
doctors.
             Jesse M. has not taken advantage of free or low-cost
programs for brain-injured individuals, saying “I’m more than
open if anybody else contacted them, family or anything, to
take their advice or opinions.” B.C. is in charge of her daily
plans. This means being with family, but not “throwing
thousands of dollars” on medical treatments that might not help.
Jesse M. noted that B.C. lost “a lot” of weight recently. He
attributed it to exercise or depression, not drug abuse. He did not
bring her medical records to the trial court, though they were
subpoenaed.
                      PROCEDURAL HISTORY
             C.S. petitioned for appointment as probate
conservator in April 2014, on the grounds that her niece B.C. is
unable to properly care for her physical health, be employed or
manage her financial resources, and is susceptible to undue
influence owing to her brain injuries. Through private counsel,




                                 5
B.C., newly married to Jesse M., who participated in hiring and
advising the attorney, opposed the petition. She asserted that
she is capable of making her own decisions, financial or
otherwise. In light of B.C.’s alleged incapacity to make decisions,
including the decision to hire a lawyer, the trial court appointed
the Ventura County Public Defender to represent B.C., without
interference by others.
              The parties agreed to the appointment of a
professional conservator for B.C.’s estate. The estate conservator
asked the court to order Jesse M. to pay B.C.’s estate $30,000, to
reimburse B.C. for Social Security disability benefits that should
have been deposited into the estate, which Jesse M. had instead
diverted to himself. The conservator, who was unsure how much
of B.C.’s disability benefits Jesse M. received, conceded the
futility of pursuing recovery from Jesse M., who has no assets
and is responsible for five children.
                   THE TRIAL COURT’S RULING
              A bench trial was conducted on the proposed
conservatorship of B.C.’s person. In December 2015, the court
appointed C.S., finding that B.C. is unable to provide for her
physical health, food, clothing or shelter, and this is the least
restrictive alternative needed for B.C.’s protection; further, B.C.
lacks capacity to give informed consent for medical treatment.
From the bench, the court observed that Jesse M. “doesn’t have
the capability to be a decision maker with his wife” as he is
overburdened and needs guidance. The court prohibited any
change in B.C.’s placement without court approval. B.C.
appealed the appointment.




                                 6
                 POST-JUDGMENT EVIDENCE3
             C.S. asked the court to remove B.C. from Jesse M.’s
residence. B.C. had rapid weight loss and tested positive for
amphetamine. Noting that B.C. had a noticeable “weight loss
and gaunt appearance” compared to prior court appearances, the
court ordered B.C. to undergo hair follicle drug testing. Drug
tests in early 2016 show increasing levels of amphetamine and
methamphetamine in B.C.’s hair.
                            DISCUSSION
1. Appeal and Review
             The order granting letters of conservatorship is
appealable. (§ 1301, subd. (a).) To determine if the order is
supported by substantial evidence, we review the record in the
light most favorable to the trial court’s findings, resolving all
evidentiary conflicts and drawing all reasonable inferences in
favor of the judgment. (Conservatorship of Amanda B. (2007) 149
Cal.App.4th 342, 347-348; Conservatorship of Ramirez (2001) 90
Cal.App.4th 390, 401.) The testimony of one witness may be
sufficient to support the findings. (Conservatorship of Carol K.


      3 Before argument, we notified the parties of our intent to
take judicial notice of evidence in the record on appeal showing
that B.C. was continuing to use methamphetamine while living
with Jesse M. The parties submitted letter briefs in response to
our notice. (Evid. Code, § 459, subd. (d).) B.C.’s drug abuse while
in Jesse’s care is “a matter . . . of substantial consequence to the
determination of the action.” (Evid. Code, §§ 459, subd. (d), 452,
subd. (c); Conservatorship of Pamela J. (2005) 133 Cal.App.4th
807, 814-815 [taking judicial notice of documents reflecting
events occurring after judgment].) Methamphetamine use poses
a grave danger to B.C.’s life, an exceptional circumstance
warranting our consideration of this evidence.


                                 7
(2010) 188 Cal.App.4th 123, 134.) Procedural due process issues
are subject to our independent review. (Conservatorship of Tian
L. (2007) 149 Cal.App.4th 1022, 1028.)
2. Jury Waiver
             B.C. hired private counsel, who demanded a jury
trial. The court struck the demand for a jury when it appointed
the public defender, to enable B.C.’s new attorney to consult with
B.C. and decide whether to demand a jury trial. The public
defender did not renew the demand. The matter was tried by the
court, which neither orally advised B.C. of a right to a jury trial
nor obtained a personal waiver. B.C. contends that the court’s
failure to obtain the personal waiver is reversible error, as a
matter of law.
             We underscore that this case involves a probate
conservatorship.4 The Probate Code authorizes appointment of a
“conservator of the person” if clear and convincing evidence shows
that the conservatee cannot provide properly for physical health,
food, clothing or shelter needs; a “conservator of the estate” may
be appointed if the conservatee is substantially unable to manage
financial resources, or resist fraud or undue influence. (§ 1801.)
A probate conservatorship does not contemplate involuntary
commitment. (Conservatorship of John L. (2010) 48 Cal.4th 131,
144.)
             Once a petition is filed, the court clerk issues a
citation directed to the proposed conservatee, setting forth the
time and place of the hearing; the appropriate legal standards;


      4 The notice of appeal purports to be taken from an “order
establishing [a] conservatorship under Welfare and Inst. Code
§ 5350 et seq.,” i.e., the LPS Act. The LPS Act and the Welfare
and Institutions Code are inapplicable to this case.


                                8
the possible effects of the adjudication; the proposed
conservatee’s right to appear, to have legal counsel, and “the
right to a jury trial if desired.” (§ 1823.) B.C. does not claim that
the court clerk failed to issue the required citation; she responded
to it by filing opposition papers.
              The probate conservatorship proceeding is conducted
under the law and procedure relating to civil actions, “including
trial by jury if demanded by the proposed conservatee.” (§ 1827.)
Neither B.C nor her appointed counsel demanded a jury.
              B.C. maintains that a jury trial cannot be forfeited by
mere inaction and that something more—an express waiver—is
required. She relies upon the involuntary commitment statutes
recently addressed by this Court in Heather W., supra, 245
Cal.App.4th 378, a case arising under the LPS Act, which
authorizes physical restraint to protect the public and treat
persons gravely disabled by a mental disorder. “An LPS
commitment order involves a loss of liberty by the conservatee.
Consequently, it follows that a trial court must obtain a waiver of
the right to a jury trial from the person who is subject to an LPS
commitment.” (Id. at p. 383.)
              The petition here did not contemplate B.C.’s
involuntary commitment. A probate conservator has no power to
place the conservatee in a locked facility, against the will of the
conservatee. (§ 2356, subd. (a); People v. Karriker (2007) 149
Cal.App.4th 763, 780; Michelle K. v. Superior Court (2013) 221
Cal.App.4th 409, 425, fn. 3.) A probate conservatorship is
distinguishable from the involuntary LPS commitment discussed
in Heather W., supra, 245 Cal.App.4th 378. It is also
distinguishable from the involuntary commitment of a mentally
disordered offender (People v. Blackburn (2015) 61 Cal.4th 1113)



                                 9
and from an involuntary hospital commitment when a defendant
pleads guilty by reason of insanity (People v. Tran (2015) 61
Cal.4th 1160). In those cases, the person facing commitment had
to personally waive the right to a jury trial.
             B.C. correctly notes that the trial judge failed to
recite, in open court, B.C.’s right “to have the matter of the
establishment of the conservatorship tried by jury.” (§ 1828,
subd. (a)(6).) The Probate Code does not require a jury trial or
an express waiver of a jury, in stark contrast to Penal Code
provisions stating that “trial shall be by jury unless waived by
both the person” and the prosecutor in civil commitment cases.
(Pen. Code, §§ 1026.5, subd. (b)(4), 2972, subd. (a); see People v.
Blackburn, supra, 61 Cal.4th at pp. 1124-1125; People v. Tran,,
supra, 61 Cal.4th at p. 1163.) Instead, the Probate Code requires
the conservatee to affirmatively demand a jury. (§ 1827.)
             Although the trial court erred by failing to advise
B.C. of her right to a jury trial, the error was harmless because
B.C. was represented by counsel. “[C]ounsel has authority to
bind the client in virtually all aspects of litigation, including
waiver of the state constitutional right to a jury trial” in ordinary
civil actions. (People v. Blackburn, supra, 61 Cal.4th at p. 1124.)
There is no basis for departing from the general rule unless there
is a threat of civil commitment in a special proceeding. (Ibid.)
Absent a threat to B.C.’s constitutionally-protected liberty
interests and absent a statutory requirement that B.C.
personally waive the right to a jury, B.C.’s attorney had authority
to forego a jury trial without B.C.’s express waiver in open court.
(Conservatorship of Mary K. (1991) 234 Cal.App.3d 265, 270-272.)




                                 10
3. The Court Satisfied Probate Conservatorship Requirements
               B.C. complains that the trial court did not consult
with her about respondent’s appointment as conservator. “[T]he
court shall consult the proposed conservatee to determine [her]
opinion concerning . . . [t]he establishment of the conservatorship
[and] [t]he appointment of the proposed conservator.” (§ 1828,
subd. (b).)
               B.C. was involved in each step of this proceeding.
First, she hired an attorney to oppose the conservatorship
petition; next, the court appointed counsel for her; and B.C.
participated in the hearings, but chose not to testify. As
expressed by her attorney during a vigorously contested
proceeding, B.C. wanted Jesse M. to make health decisions for
her. The trial was an attempt to convince the court to follow
B.C.’s opinion opposing the conservatorship. B.C. was not
deprived of her right to be consulted. (Compare Conservatorship
of Christopher A. (2006) 139 Cal.App.4th 604, 610 [a court may
not accept a stipulated judgment by counsel to establish a
conservatorship without consulting the proposed conservatee].)
On the contrary, B.C.’s sentiments were fully represented to the
court by her attorney.
4. Substantial Evidence Supports the Ruling
               The court may grant a conservatorship of the person
if it “is the least restrictive alternative needed for the protection
of the conservatee.” (§ 1800.3, subd. (b).) The court made an
express finding on this point. B.C. now argues that the finding is
unsupported by the record. She maintains that Jesse M. is able
to carry out her needs for assistance with health issues.
               The record shows that Jesse M. ignored medical
recommendations to obtain occupational and speech therapy for



                                 11
B.C. and to seek free or low cost treatment at centers specializing
in brain injury. He called one therapist, decided that it was too
expensive, then gave up on the idea, reasoning that it was a
waste of money because it might not improve B.C.’s cognitive and
verbal skills. Jesse M.’s speculative musings caused B.C. to lose
precious time without focused treatment. Jesse M. testified that
the onus is on everybody but him (doctors, other family members)
to seek therapy and treatment for B.C.
             While Jesse M. expressed concern over the cost of
B.C.’s treatment, he had no compunctions about taking B.C.’s
disability benefits, which rightfully belonged to the
conservatorship estate. Instead of using the money to address
B.C.’s disabilities, he expended the entire sum on travel, jewelry
and an entire wardrobe. Jesse M.’s poor judgment in taking and
misusing B.C.’s disability benefits supports the trial court’s
determination that Jesse M. cannot be trusted to make suitable
health care decisions for B.C.
             A far greater concern to this court is evidence that
Jesse M. allowed B.C. to become re-addicted to
methamphetamine while in his care. It is unclear who supplied
B.C. with the drugs that nearly killed her in 2012, or who is
supplying her now. It is enough to know that from December
2015 through February 2016, drug tests proved that B.C. is using
ever-increasing amounts of methamphetamine. With his own
admitted history of methamphetamine abuse, Jesse M. is not a
candidate for keeping B.C. away from drugs. A conservatorship
of the person to ensure that B.C. continues to test for drugs and
achieves sobriety is the least restrictive alternative.
             The record shows that B.C.’s memory is so impaired
that she cannot remember things “from one moment to the next,



                                12
much less one day to the next,” according to Dr. Monguio.
Although B.C. can perform simple activities, she needs care,
direction and structure for everything. For this reason, Dr.
Monguio considered B.C. to be in need of assistance in matters of
personal health. Nevertheless, B.C. insists that she has
sufficient capacity to nominate her own conservator, Jesse M.;
however, Jesse M. never sought to be named as personal
conservator.5 Given B.C.’s continuing struggles with drug
addiction and use of methamphetamine while living with Jesse
M., any notion of naming him as personal conservator must be
rejected.
                          DISPOSITION
             The judgment granting letters of conservatorship to
respondent C.S. is affirmed.
             CERTIFIED FOR PUBLICATION.



                                     PERREN, J.

We concur:

             GILBERT, P. J.



             TANGEMAN, J.


      5 B.C.’s opening brief states, “there was no evidence upon
which the trial court could conclude that it was in B.C.’s best
interest to have her aunt, C.S., appointed as conservator, rather
than her husband, Jesse,” noting that a spouse is preferred over
others as conservator. (§ 1812, subd. (b).)


                                13
                    Glen M. Reiser, Judge
              Superior Court County of Ventura
               ______________________________

          The Law Office of Theresa L. McConville and Sara J.
McLemen for Petitioner and Respondent.

           Stephen P. Lipson, Public Defender and Benjamin W.
Maserang, Sr. Deputy Public Defender, for Objector and
Appellant.
