CACI 4008 Third Party Assistance to Minor

California Civil Jury Instructions CACI

4008 Third Party Assistance to Minor

A minor is not “gravely disabled” if [he/she/nonbinary pronoun] can survive safely with the help of third party assistance. Third party assistance is the aid of family, friends, or others who are responsible, willing, and able to help provide for the minor’s health, safety, and development, including food, shelter, and clothing.

You must not consider offers by family, friends, or others unless they [have testified to/stated specifically in writing] their willingness and ability to help provide for [name of respondent]’s health, safety, and development. Well-intended offers of assistance are not sufficient unless they will ensure the person can survive safely.

[Assistance provided by a correctional facility does not constitute third party assistance.]

Sources and Authority

Help of Family and Friends. Welfare and Institutions Code section 5350(e).

“[A] person is not ‘gravely disabled’ within the meaning of section 5008, subdivision (h)(1) if he or she is capable of surviving safely in freedom with the help of willing and responsible family members, friends or third parties.” (Conservatorship of Davis (1981) 124 Cal.App.3d 313, 321 [177 Cal.Rptr. 369].)

“Although a minor may not be legally responsible to provide for his basic personal needs, or may suffer disabilities other than a mental disorder which preclude him from so providing, the [statutory] definition is nevertheless applicable. A minor is ‘gravely disabled’ within the meaning of section 5008, subdivision (h)(1), when the trier of fact, on expert and other testimony, finds that disregarding other disabilities, if any, the minor, because of the further disability of a mental disorder, would be unable to provide for his basic personal needs. Immaturity, either physical or mental when not brought about by a mental disorder, is not a disability which would render a minor ‘gravely disabled’ within the meaning of section 5008.” (In re Michael E. (1975) 15 Cal.3d 183, 192, fn. 12 [123 Cal.Rptr. 103, 538 P.2d 231].)

“As we view the broad purpose of the LPS Act, imposition of a conservatorship should be made only in situations where it is truly necessary. To accomplish this purpose evidence of the availability of third party assistance must be considered.” (Conservatorship of Early (1983) 35 Cal.3d 244, 253 [197 Cal.Rptr. 539, 673 P.2d 209].)

“The California Supreme Court in Conservatorship of Early … concluded although a person might be gravely disabled if left to his or her own devices, he or she may be able to function successfully in freedom with the support and assistance of family and friends. The court recognized almost everyone depends to a greater or lesser extent upon others in order to survive in our complex society.” (Conservatorship of Jones (1989) 208 Cal.App.3d 292, 299 [256 Cal.Rptr. 415].)

“Corrections custody does not qualify as third party assistance under the LPS Act as interpreted by case law.” (Conservatorship of Jones, supra, 208 Cal.App.3d at p. 303.)

“Under section 5350, subdivision (e)(1), a person is not gravely disabled only if he or she can survive safely with the assistance of a third party. There is substantial evidence that the assistance offered by [respondent’s mother], while well-intended, would not meet this requirement.” (Conservatorship of Johnson (1991) 235 Cal.App.3d 693, 699 [1 Cal.Rptr. 2d 46], original italics, footnote omitted.)

“The parties have raised the issue of whether section 5350, subdivision (e)(2), precluded the trial court from considering [petitioner’s mother’s] testimony on the issue of third party assistance. This section provides that third parties shall not be considered willing or able to provide assistance unless they so indicate in writing. This section has no application in this case. The purpose of section 5350, subdivision (e), ‘is to avoid the necessity for, and the harmful effects of, requiring family, friends, and others to publicly state, and requiring the court to publicly find, that no one is willing or able to assist the mentally disordered person in providing for the person’s basic needs for food, clothing, or shelter.’ This was not the case here; [petitioner’s mother] took the stand at trial and testified as to her willingness to provide assistance to her daughter. No purpose of section 5350, subdivision (e), would be served by requiring her to also execute a writing to this effect.” (Conservatorship of Johnson, supra, 235 Cal.App.3d at p. 699, n. 5.)

Secondary Sources

3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 90, 97, 100
2 California Conservatorship Practice (Cont.Ed.Bar) § 23.4
28 California Forms of Pleading and Practice, Ch. 329, Juvenile Courts: Delinquency Proceedings, § 329.73 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental Disabilities: Judicial Commitment, Health Services, and Civil Rights, §§ 361A.42, 361A.45 (Matthew Bender)