In Conservatorship of Gregory D., (“Gregory D.”), the Court of Appeal considered whether the mother of a conservatee had standing to appeal an order that, among other things, set a visitation schedule for her son, an adult conservatee. The Court of Appeal determined that the mother did not have standing to appeal, as she had not identified any of her own rights or interests that were injuriously affected by the order.
Gregory D. (“Gregory”) is a developmentally disabled adult in his mid-twenties. Gregory reached the age of 18 in 2005; and, he moved into his own apartment in 2008, with supportive services that enable him to live independently. In 2004, Gregory’s parents, Linda and Joseph, who were divorced, filed competing petitions to be named as Gregory’s limited conservator. In 2005, Linda and Joseph settled the dispute and agreed that Linda would become Gregory’s limited conservator. As limited conservator, Linda was granted various powers, including the ability to fix Gregory’s place of residence, access to Gregory’s confidential records and papers, and the power to enter into contracts on Gregory’s behalf.
A Series of Conservators:
While Linda was serving as limited conservator, further litigation ensued between Joseph and Linda pertaining to Linda’s administration of the conservatorship. Joseph filed a petition to remove Linda as Gregory’s conservator, contending that Linda had improperly relocated Gregory from half-time residence in Joseph’s home and had prohibited contact between Joseph’s family and Gregory. In August 2008, the court appointed a Probate Volunteer Panel attorney, Paul Gaulke (“Gaulke”), as attorney for Gregory.
In July of 2009, after Joseph and Linda entered into another settlement agreement, the court entered an order providing, among other things, that Linda would resign as limited conservator immediately upon the appointment of a successor limited conservator. In September 2009, the court appointed Linda Cotterman (“Cotterman”) as the successor limited conservator for Gregory.
In April 2011, Joseph filed a petition for termination of Cotterman as limited conservator. Following a trial, the court granted the petition to remove Cotterman.
On November 18, 2011, the court appointed Bruce Hitchman and Lee Ann Hitchman (“the Hitchmans”) as the successor limited conservators for Gregory.
The Petition for Instructions and the Appeal:
On or about October 20, 2011, Gaulke, Gregory’s court appointed attorney, filed a petition for instructions, seeking guidance from the court as to how the new limited conservators could best administer Gregory’s limited conservatorship so as to minimize further disputes between the parties. On November 18, 2011, the trial court issued its order on the petition for instructions. The court made certain rulings with respect to the issues of visitation, disclosure of Gregory’s records, and replacement of Gregory’s supported living services vendor, as follows:
1) The Hitchmans, as newly appointed limited conservators, were ordered to comply with an earlier court order removing Gregory’s supported living services vendor, and to retain a new vendor within 60 days;
2) A three-weekend, rotating visitation schedule was established for Gregory: the first weekend, Gregory would determine how to spend his weekend; the second weekend was assigned to Joseph, who would decide how that weekend visitation would be spent with Gregory, with Gregory being able to elect an overnight stay at Joseph’s home or elsewhere; the third weekend was assigned to Linda, who would decide how that weekend would be spent with Gregory, with Gregory being able to elect an overnight stay at Linda’s home or elsewhere.
3) All of Gregory’s records, including his medical, financial and personal records, were ordered to be furnished by the Hitchmans to Gregory’s parents (Linda and Joseph), in accordance with an earlier court order.
Linda filed an appeal from the trial court’s order on the petition for instructions, contending that: the visitation order violated Gregory’s constitutional rights to liberty and privacy; the order directing termination of the supported living services vendor was in excess of the trial court’s jurisdiction; and, the order requiring the disclosure of Gregory’s medical, financial and personal records to his parents violated Gregory’s constitutional and statutory rights of privacy.
The Court of Appeal’s Ruling:
The threshold issue on appeal was whether Linda had standing to assert the arguments that she raised on appeal. In short, the Court of Appeal determined that Linda did not have standing to appeal, as she had not identified any of her own rights or interests that were injuriously affected by the order. Rather, Linda argued that Gregory’s rights were affected, and Gregory had not appealed the order.
Code of Civil Procedure section 902 states that any party that is “aggrieved” may appeal from an adverse order or judgment; one must both be a party of record to the action and “aggrieved” to have standing to appeal. As the Court of Appeal noted, injurious effect on another party is insufficient to give rise to appellate standing.
The Court of Appeal also noted that Linda’s status as Gregory’s concerned mother did not confer standing to appeal on his behalf. And, the Court of Appeal distinguished Probate Code section 1829 (pertaining to the establishment of a conservatorship), which provides that a relative of the conservatee, among other persons, may appear at the hearing to support or oppose the petition. While this provision entitled Linda to participate in the conservatorship proceeding in the trial court, it did not also mean that she was entitled to bring an appeal from the trial court’s order.
Standing to appeal is governed by Code of Civil Procedure section 902, and absent a showing by Linda that she was injuriously affected by the trial court’s order, she lacked standing to appeal.
If you wish to read further on this subject, check out the Court of Appeal’s Ruling: Conservatorship of Gregory D..