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Michelle K. v. Superior Court (Harbor Developmental Disabilities Foundation)

California Court of Appeals, Fourth District, Third Division

November 8, 2013

MICHELLE K., an Incompetent Person, etc. Petitioner,

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County Nos. A169658, 30 2012-00608957, Caryl Lee, Judge.

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Locke Lord, Jon L. Rewinski and Matthew B. Nazareth for Petitioner.

No appearance for Respondent.

Frank Ospino, Public Defender, Mark S. Brown, Assistant Public Defender, and Kira Rubin, Deputy Public Defender, for Real Party in Interest Orange County Public Defender’s Office.

Enright & Ocheltree, Judith A. Enright and Julie A. Ocheltree for Real Party in Interest Harbor Developmental Disabilities Foundation, doing business as Harbor Regional Center.



Petitioner Michelle K., an incompetent person, by George K., [1] her conservator, seeks writ relief to prevent the trial court from conducting an evidentiary hearing on (1) a habeas corpus petition the Orange

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County Public Defender (Public Defender) filed on Michelle’s behalf to obtain her release from Fairview Developmental Center (Fairview), and (2) a periodic judicial review on whether Michelle’s Fairview placement remains necessary. Michelle is a 51-year-old, developmentally disabled adult who has resided at Fairview for more than 40 years due to a series of placements made under the Lanterman Developmental Disabilities Services Act (Lanterman Act; Welf. & Inst. Code, § 4500 et seq.).[2] The Public Defender brought the habeas corpus petition under section 4800 because it contends less restrictive facilities can provide similar care for Michelle and the Lanterman Act mandates placement of developmentally disabled persons in the least restrictive environment capable of meeting their needs. George contends the Public Defender lacks authority to pursue the habeas corpus petition because he, as Michelle’s legal representative, has determined Fairview is the best placement for Michelle.

We agree the Public Defender lacks authority to pursue the habeas corpus petition on Michelle’s behalf. Supreme Court precedent establishes the Public Defender may not pursue a section 4800 habeas corpus petition on a developmentally disabled person’s behalf without establishing “‘very exceptional circumstances’” (In re Hop (1981) 29 Cal.3d 82, 86-87 [171 Cal.Rptr. 721, 623 P.2d 282], original italics (Hop)) and tat other available remedies for challenging the placement are inadequate (In re Gandolfo (1984) 36 Cal.3d 889, 897-900 [206 Cal.Rptr. 149, 686 P.2d 669] (Gandolfo)). We conclude very exceptional circumstances are not present in this case and the existing remedies are adequate because Michelle’s Fairview placement has been subject to periodic judicial review for nearly 20 years, a hearing on the next periodic review already was scheduled when the Public Defender filed the habeas corpus petition, and the Public Defender failed to show George is not acting in Michelle’s best interest.

Although we agree with George the Public Defender may not pursue its habeas corpus petition, we do not agree with his contention the Lanterman Act’s administrative fair hearing procedures deprive the trial court of jurisdiction to periodically review Michelle’s placement. The fair hearing procedures provide the exclusive means for challenging a specific decision to change Michelle’s placement or the other services she receives, but those procedures do not prevent the trial court from periodically reviewing whether her developmental center placement is still warranted. In Hop, the Supreme Court held that a developmentally disabled person could not be placed in a developmental center under the Lanterman Act without a judicial hearing on

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whether the person’s disabilities warrant placement in the most restrictive environment available. Because placement in a developmental center constitutes a significant restraint on the developmentally disabled person’s fundamental liberty interests, the Hop court concluded the person’s due process and equal protection rights require a judicial determination regarding the suitability of the placement. As explained below, we conclude Hop’s rationale also requires periodic independent reviews to ensure the developmentally disabled person’s disability continues to warrant placement in a developmental center.

We also conclude the trial court properly refused to allow George to replace the Public Defender as Michelle’s appointed counsel with a private attorney he retained to represent her. As explained below, Michelle has a right to independent appointed counsel on the periodic Hop reviews because she has a significant liberty interest in her placement. Allowing George to both seek Michelle’s continued placement at Fairview and select Michelle’s counsel for the judicial review regarding that placement would render Michelle’s right to independent counsel illusory. George may ask the trial court to appoint new counsel for Michelle if he believes the Public Defender is not providing effective representation and the trial court must give George a full opportunity to state the reasons for that request.

Accordingly, we issue a writ of mandate directing the trial court to (1) enter an order dismissing the habeas corpus petition the Public Defender filed on Michelle’s behalf; (2) proceed with the Hop review hearing on Michelle’s Fairview placement; and (3) hear and decide any request by George to appoint new counsel for Michelle.


Legal Background

To explain the roles performed by the various persons and entities involved in Michelle’s Fairview placement, and to put the parties’ contentions in the proper context, we begin by providing an overview of the principal statutory scheme at issue, the Lanterman Act, and two related statutory schemes, the Lanterman-Petris-Short (LPS) Act (LPS Act; § 5000 et seq.) and section 6500 et seq. These acts authorize confinement of developmentally disabled or mentally ill persons in a state developmental center (also referred to as a state hospital in some statutes) when certain conditions are satisfied. We also summarize the Supreme Court’s Hop decision and the limits it places on a developmentally disabled person’s commitment to a developmental center under the Lanterman Act.

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A. The Lanterman Act

“Enacted in 1977, the Lanterman Act establishes a comprehensive scheme for providing services to people with developmental disabilities.” (Capitol People First v. State Dept. of Developmental Services (2007) 155 Cal.App.4th 676, 682 [66 Cal.Rptr.3d 300] (Capitol People).) The Lanterman Act’s stated purpose is to establish “[a]n array of services and supports... which is sufficiently complete to meet the needs and choices of each person with developmental disabilities, regardless of age or degree of disability, and at each stage of life and to support their integration into the mainstream life of the community.” (§ 4501.)

A “‘[d]evelopmental disability’” is “a disability that originates before an individual attains age 18 years, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual.” (§ 4512, subd. (a).) The term includes “mental retardation, cerebral palsy, epilepsy, and autism, ” but does not include “other handicapping conditions that are solely physical in nature.” (Ibid.)

The state contracts with private nonprofit corporations to establish and operate a network of 21 regional centers that are responsible for determining eligibility, assessing needs, and coordinating and delivering direct services to developmentally disabled persons and their families. (Capitol People, supra, 155 Cal.App.4th at pp. 682 683.) The regional centers’ purpose is to “assist persons with developmental disabilities and their families in securing those services and supports which maximize opportunities and choices for living, working, learning, and recreating in the community.” (§ 4640.7, subd. (a).) The state “allocates funds to the centers for operations and the purchasing of services, including funding to purchase community based services and supports. [Citations.]” (Capitol People, at p. 683.)

“The specific rights of persons with developmental disabilities and the corresponding obligations of the state are determined through an individual program plan (IPP) procedure that meets common statutory requirements. (§§ 4646-4648.) The IPP is developed by a planning team that includes the [developmentally disabled person], his or her legally authorized representative, and one or more regional center representatives. (§ 4512, subd. (j).) The goals and objectives developed through the IPP process should maximize opportunities for the individual to be part of community life; enjoy increased control over his or her life; acquire positive roles in community life; and develop the skills to accomplish the same. (§ 4646.5, subd. (a)(2).)” (Capitol People, supra, 155 Cal.App.4th at p. 683.)

Before July 1, 2012, a nondangerous, developmentally disabled person could be admitted to a state developmental center in two ways. First, the

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person could submit a written admission application if he or she “is in such condition of mind as to render him competent to make [the application].” (§ 6000, subd. (a)(1).) Second, section 4825 authorized admission “upon the application of the person’s parent or conservator in accordance with the provisions of Sections 4653 and 4803.” (See § 6000.5.) Section 4653 states “no developmentally disabled person shall be admitted to a state hospital except upon the referral of a regional center.” Section 4803 provides that a regional center may not recommend admission of a developmentally disabled person to a community care or health facility unless the regional center certifies the person to be admitted or the person’s parent or conservator does not object. Section 4825 does not limit the length of a developmentally disabled person’s commitment, nor does it require judicial review of the placement.

Effective July 1, 2012, the Legislature amended the Welfare and Institutions Code to prohibit nondangerous, developmentally disabled persons from being admitted to state developmental centers. (§§ 4507, 7505.) Section 7505 now provides that a person shall not be admitted to a state developmental center unless the person is developmentally disabled and the person is: (1) committed by a court to Fairview Developmental Center because the person is a danger to self or others under section 6500 and is suffering an acute crisis as defined in section 4418.7; (2) committed by a court to the Porterville Developmental Center’s secure treatment program through the criminal justice system or juvenile court system; or (3) a prior resident of a developmental center who was provisionally released no more than 12 months earlier.

These recent Welfare and Institution Code amendments do not require moving nondangerous, developmentally disabled persons living in a state developmental center on July 1, 2012, to a different facility. Instead, the amendments require the regional center responsible for the committee to conduct a comprehensive assessment and “identify the types of community-based services and supports available to the [person].” (§ 4418.25, subd. (c)(2)(A) & (B).) The regional center must then provide the assessment to the individual program planning team to assist it in determining the least restrictive environment for the committee. (§ 4418.25, subd. (c)(2)(D).)

“[T]he Lanterman Act guarantees an applicant for or recipient of services or his or her representative ‘who is dissatisfied with any decision or action of [a regional center or developmental center]’ the right to an administrative fair hearing. [Citation.]” (Conservatorship of Whitley (2007) 155 Cal.App.4th 1447, 1459 [66 Cal.Rptr.3d 808] (Whitley); see § 4704.) The fair hearing procedures are designed to decide “all issues concerning the rights of persons with developmental disabilities to receive services under [the Lanterman Act].” (§ 4706, subd. (a).) The fair hearing procedures include

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“detailed provisions for claimants who wish to attempt to resolve the issue through a voluntary informal meeting or through voluntary mediation before proceeding to an administrative fair hearing. [Citations.]” (Whitley, at pp. 1459-1460.) If the claimant chooses to proceed to an administrative fair hearing, the Lanterman Act guarantees the claimant a prehearing exchange of potential witnesses and documentary evidence, the opportunity to present witnesses and evidence, the opportunity to cross-examine all opposing witnesses, the right to appear through counsel or other representatives, and a written decision by the hearing officer. (Whitley, at pp. 1460 1461.) Either side may seek judicial review of the administrative decision through a writ of administrative mandamus. (See In re Michael K. (2010) 185 Cal.App.4th 1112, 1126 [111 Cal.Rptr.3d 187] (Michael K.).)

B. The LPS Act

The LPS Act “governs the involuntary treatment of the mentally ill in California.” (Susan T., supra, 8 Cal.4th at p. 1008.) It “is intended to provide prompt, short-term, community-based intensive treatment, without stigma or loss of liberty, to individuals with mental disorders who are either dangerous or gravely disabled.” (Ford v. Norton (2001) 89 Cal.App.4th 974, 977 [107 Cal.Rptr.2d 776].) A person is “‘gravely disabled’” under the LPS Act if the “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 term “does not include mentally retarded persons by reason of being mentally retarded alone.” (§ 5008, subd. (h)(3).)

When probable cause exists to believe a mental disorder makes a person “a danger to others, or to himself or herself, or gravely disabled, ” the LPS Act authorizes a peace officer or certain mental health professionals to detain the person for a 72-hour treatment and evaluation period. (§ 5150.) Following that period, the person may be detained for increasingly longer periods depending on the results of the initial evaluation and treatment. (See, e.g., §5250, subd. (a) [additional intensive 14-day treatment period if person remains “a danger to others, or to himself or herself, or gravely disabled”]; § 5260 [second intensive 14-day treatment period if the person is suicidal]; § 5270.15 [additional 30-day treatment period if person remains gravely disabled, he or she is unwilling to voluntarily accept treatment, and the county board of supervisors authorized 30-day treatment periods]; § 5300 [additional 180-day commitment if person is imminently dangerous]; § 5304, subd. (b) [second 180-day commitment if person remains imminently dangerous].)

The 14-day and 30-day confinements require a certification hearing before a court-appointed commissioner or hearing officer to determine whether

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probable cause exists for the detention unless the person has filed a habeas corpus petition seeking judicial review of the confinement. (§§ 5256, 5256.1, 5262, 5270.15, 5275, 5276; Susan T., supra, 8 Cal.4th at p. 1009.) The confined person has a right to appointed counsel at any hearing on a habeas corpus petition. (§§ 5275, 5276.) The 180-day commitments require a trial court order following a judicial hearing at which the confined person is entitled to appointed counsel, a jury trial, proof beyond a reasonable doubt, and a unanimous verdict on whether he or she is imminently dangerous. (§§ 5301-5303; Susan T., at p. 1009; Conservatorship of Roulet (1979) 23 Cal.3d 219, 230-233 [152 Cal.Rptr. 425, 590 P.2d 1] (Roulet).)

The LPS Act also authorizes the trial court to appoint a conservator for a gravely disabled person (§ 5350) so that she may receive individualized treatment, supervision, and placement (§ 5350.1). The proposed conservatee is entitled to appointed counsel, a jury trial, proof beyond a reasonable doubt, and a unanimous verdict on the question of whether the person is gravely disabled. (§§ 5350, subd. (d); 5365; Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604, 611 [43 Cal.Rptr.3d 427].) Before July 1, 2012, an LPS conservator had the power to place the conservatee in a state developmental center or other locked treatment facility if the conservator determined it was the least restrictive placement.[3] (§§ 5353, 5358, 6000, subd. (a)(1); In re Violet C. (1989) 213 Cal.App.3d 86, 91 [261 Cal.Rptr. 470] (Violet C.).) Following the recent amendments to the Welfare and Institutions Code, an LPS conservator no longer has authority to place a conservatee in a state developmental center, but the conservator retains all other powers regarding the conservatee’s placement. (§§ 6000, subds. (a) & (c); 7505.) An LPS conservatorship automatically terminates after one year unless the conservator successfully petitions the court to reestablish the conservatorship. (§§ 5361-5362.)

C. Judicial Commitments Under Section 6500 et seq.

Section 6500 authorizes the district attorney, or county counsel if designated by the board of supervisors, to petition the trial court for an order involuntarily committing a developmentally disabled person who is a danger to self or others. (ยง 6500, subd. (b)(5).) The petition may be brought at the request of the parent, guardian, conservator, or other person ...

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