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In re Michael K.

June 22, 2010


(Santa Clara County Super. Ct. No. 1-08-MH032500). Hon. Mary Ann Grilli.

The opinion of the court was delivered by: Premo, J.


In 2005, the Legislature approved a plan to close Agnews State Hospital (Agnews). As part of the closure plan, it passed Senate Bill No. 962, which was signed by the Governor and enacted into law on October 5, 2005. Senate Bill No. 962 authorizes the Department of Developmental Services (DDS) and the Department of Social Services (DSS) to jointly establish and administer a pilot project for licensing and regulating Adult Residential Facilities for Persons with Special Health Care Needs, known as a Senate Bill No. 962 Home (hereafter Senate Bill No. 962 Home).*fn1 Senate Bill No. 962 Homes are residences that can accommodate four to five individuals with significant developmental disabilities in a community setting.

Michael K. (hereinafter referred to as Michael for clarity) is a gravely disabled adult who has resided at Agnews since 1986. Gail B. and James K. (hereinafter referred to as Gail and James for clarity) are his parents and coconservators. When the Legislature approved the plan to close Agnews, San Andreas Regional Center (SARC) determined that Michael would be placed in a Senate Bill No. 962 Home.*fn2 Gail and James objected because they wished Michael to be placed in Sonoma Developmental Center (Sonoma). In 2008, an administrative law judge upheld the objection and ordered SARC to place Michael in Sonoma. But in 2009, the public defender, purporting to act on behalf of Michael*fn3 and under the authority of In re Hop (1981) 29 Cal.3d 82 (Hop), filed a petition for a writ of habeas corpus contending that Michael should be placed in the Senate Bill No. 962 Home. Gail and James appeared and objected. SARC appeared and asked for a court order for Michael's placement. The trial court granted the petition. On appeal, Gail and James contend that the trial court failed to give deference to the administrative decision. Michael, represented by court-appointed counsel, counters that substantial evidence supports the trial court's order. SARC has made no appearance on appeal. We agree with Gail and James. We therefore reverse the order.

Legal Background

The Lanterman Developmental Disabilities Services Act (Lanterman Act) (Welf. & Inst. Code, § 4500 et seq.)*fn4 "grants persons with developmental disabilities the right to receive treatment and services to meet their needs, regardless of age or degree of handicap, at each stage of life. These individuals are 'consumers' of the treatment and services they receive. [Citation.] The state must pay for these services through contracts with various private nonprofit corporations for the operation of regional centers for the developmentally disabled, such as [SARC], and requires regional centers to develop an IPP [individual program plan] for each consumer that sets forth the treatment and services to be provided for the consumer." (Conservatorship of Whitley (2007) 155 Cal.App.4th 1447, 1454, fn. 3 (Whitley).)

The Legislature enacted the Lanterman-Petris-Short Act (LPS Act) (§ 5000 et seq.) to "establish certain rights of the so-called developmentally disabled persons, primarily their entitlement to the maximum degree of personal liberty and autonomy consonant with their handicap. [Citations.] The legislative mandate directs, therefore, such persons be situated in the least restrictive placement possible. [Citation.] To implement this goal, the statutes create entities known as regional centers, such as [SARC] here, which have the primary responsibility to locate community placements for developmentally disabled persons. These centers must, with respect to persons already admitted to state hospitals, such as [Michael], screen the records of all such admittees to determine whether less restrictive placements are possible; and with respect to prospective new admissions of such persons to state hospitals, the centers must consider alternative placements first. [Citation.] No developmentally disabled person may be admitted to a state hospital 'except upon the referral of a regional center.' [Citation.] The legislative intent stated for this statutory scheme is that developmentally disabled persons may lead more 'independent, productive, and normal lives.' " (In re Borgogna (1981) 121 Cal.App.3d 937, 940-941.)

The LPS Act provides for the appointment of a conservator of the person, estate, or both "for any person who is gravely disabled as a result of mental disorder or impairment by chronic alcoholism." (§ 5350.) As relevant here, the term "gravely disabled" means "A condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter." (§ 5008, subd. (h)(1)(A).) The purpose of such a conservatorship is to provide "individualized treatment, supervision, and placement." (§ 5350.1.) In general, placement in the least restrictive alternative is initially by court order at the time a court appoints an LPS conservator; thereafter an LPS conservator may unilaterally transfer the conservatee to a less restrictive alternative; but, a transfer to a more restrictive alternative requires written notice to the court, the conservatee's attorney, and others. (§ 5358.)

The Probate Code also provides for the appointment of a conservator of the person for "a person who is unable to provide properly for his or her personal needs" (Prob. Code, § 1801, subd. (a)) or a conservator of the estate "for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence" (id. subd. (b)). Generally, a Probate Code conservator has the care, custody, and control of the conservatee and is empowered to fix the residence of the conservatee anywhere in the state and make health care decisions if the conservatee has been adjudicated to lack the capacity to make health care decisions. (Id. §§ 2351, 2352, 2355.)

The Probate Code additionally provides for the appointment of a "limited conservator" of the person, estate, or both "for a developmentally disabled adult." (Prob. Code, § 1801, subd. (d).) "The limited conservator shall secure for the limited conservatee those habilitation or treatment, training, education, medical and psychological services, and social and vocational opportunity as appropriate and as will assist the limited conservatee in the development of maximum self-reliance and independence." (Id. § 2351.5, subd. (a)(2).) But a limited conservator is not empowered absent court order to fix the residence of the limited conservatee or give medical consent. (Id. subd. (b).)*fn5

"The Legislature, in relevant provisions of the [Lanterman Act]... details the rights and relief available to... legal representative[s], such as [Gail and James] acting as [Michael's] [co]conservator[s], who believe[] a placement decision has been proposed that is not in [their] conservatee's best interests. Those statutory provisions direct that a legal representative's objection to a proposed community placement is to be resolved by an administrative fair hearing procedure followed by superior court review if the conservator, or another party, remains dissatisfied with the result." (Whitley, supra, 155 Cal.App.4th at p. 1453.)

Factual Background

We appreciate Administrative Law Judge Karen J. Brandt's comprehensive decision and adopt from it as indicated by unattributed quotation marks.

Michael was born prematurely in 1976 and has lived at Agnews since 1986. He is a person with profound mental retardation with an IQ of 10. He has serious medical complications arising from his premature birth such as a paralysis of all four limbs, a disordered muscle tone, the sufferance of seizures, the inability to use or understand language, the required feeding through a jejunostomy tube (J tube), incontinence, reactive ...

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