In re Conservationship of Whitley

• Decision Date: 10 October 2007
• Docket Number: No. A113242.,A113242.
• Citation: 155 Cal.App.4th 1447,66 Cal.Rptr.3d 808
• Court: California Court of Appeals Court of Appeals
• Parties: CONSERVATORSHIP OF the Person And Estate of Roy WHITLEY. North Bay Regional Center, Petitioner and Respondent, v. Virginia Maldonado, Objector and Appellant.

66 Cal.Rptr.3d 808

155 Cal.App.4th 1447

CONSERVATORSHIP OF the Person And Estate of Roy WHITLEY North Bay Regional Center, Petitioner and Respondent, v. Virginia Maldonado, Objector and Appellant.

No. A113242.

Court of Appeal, First District, Division 4.

October 10, 2007.

Severson & Werson, Jan T. Chilton, Donald J. Querio, San Francisco, and Jeremy K. Ostrander, for Appellant.

Farella Braun & Martel, Mark D. Petersen and Patrick McKinney, San Francisco, for California Association of State Hospital/Parent Councils for the Retarded, Amicus Curiae for Appellant.

Reed Smith, Joseph P. Mascovich, Bette B. Epstein and David J. de Jesus, Oakland; Nancy Wilborg Ryan, Santa Rosa, for Respondent.

Enright & Ocheltree, Julie A. Ocheltree, Judith A. Enright, Beverly Hills, and Andrew J. Black for Association of Regional Center Agencies, Inc., Amicus Curiae for Respondent and on behalf of Conservatee Roy Whitley.

Protection & Advocacy, Inc., Eric R. Gelber, Sacramento, and Ellen S. Goldblatt, Oakland, as Amicus Curiae on behalf of Conservatee Roy Whitley.

Edmund G. Brown, Jr., Attorney General, Thomas Yanger, Senior Assistant Attorney General, Douglas M. Press, Supervising Deputy Attorney General, Susan M. Carson, Deputy Attorney General, for California Department of Developmental Services as Amicus Curiae.

RUVOLO, P.J.

I. INTRODUCTION

For over 20 years, Virginia Maldonado (Maldonado) has been the conservator for her developmentally disabled adult brother, Roy Whitley (Whitley). She appeals from an order of the superior court, entered over her objection after a two-day evidentiary hearing, granting the North Bay Regional Center's (NBRC) request to move Whitley from the Sonoma Developmental Center (SDC) to a smaller community facility in Fairfield, California. In this appeal, the sole issue we consider is whether it was appropriate to seek immediate relief in the superior court to resolve Maldonado's challenge to the change-of-placement decision.

The Legislature, in relevant provisions of the Lanterman Developmental Disabilities Services Act (Welf. & Inst.Code, §§ 4500 et seq.)¹ (hereafter the Lanterman Act), details the rights and relief available to a legal representative, such as Maldonado acting as Whitley's conservator, who believes a placement decision has been proposed that is not in her 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. (§§ 4803; 4712.5, subd. (a).) Maldonado's attempt to invoke that statutory fair hearing remedy was improperly thwarted by NBRC's insistence on a judicial hearing in superior court as contemplated in the settlement of an unrelated federal case, Richard S. et al. v. Department of Developmental Services (U.S. Dist. Court for the Central Dist. of Calif., So. Div., Aug. 29, 2000, No. SACV 97-219 GLT (ANX)) (the Richard S. settlement).

We conclude the Richard S. settlement did not authorize the parties here to bypass the statutorily prescribed administrative fair hearing procedure. In these circumstances, we find that it was the intent of the Legislature to supersede all common law remedies with those provided for in the Lanterman Act. Therefore, the only means by which Maldonado, as a conservator, could object to NBRC's community placement decision was by invoking the statutorily authorized administrative fair hearing provisions of the Lanterman Act. Because Maldonado was improperly denied that administrative review, we reverse and remand so that the community placement planning process may be recommenced. If that process results in a decision to which Maldonado objects, she should be afforded her statutory right of review by an administrative fair hearing followed, if necessary, by court review. (See Code Civ. Proc., § 1094.5 [providing judicial review of final administrative proceedings].)

II. FACTS

Whitley is a nearly 55-year-old severely developmentally disabled adult. He suffers from epilepsy, mild cerebral palsy and profound mental retardation caused by microcephaly. He cannot speak coherently, nor can he tell others when he is experiencing pain or needs medical attention. He requires some assistance to perform routine tasks such as bathing, dressing, grooming, and toileting at night. For his own safety, he must be closely supervised when outdoors in unfamiliar areas because he is unaware of hazards. He is described as "quite the `ladies man'" and someone who is "overly affectionate and friendly towards strangers[,] ... attempting] to pat people on their behinds and or give kisses on their face, shoulder or a person's back." He can also be "strong-willed" and "resistive to following instructions...."

Whitley lived with his family until 1960, when he was seven years old. At that point, his mother could no longer care for him due to his maladaptive behaviors and the other demands of her large family, and she had him admitted to Sonoma State Hospital (now Sonoma Developmental Center (SDC)), an institution operated by the Department of Developmental Services (DDS). Whitley lived at the SDC for the next 23 years.

In 1983, Whitley was moved from the SDC to a community facility. That same year, appellant was appointed Whitley's conservator. Approximately eight years later, in 1991, Whitley exhibited behavioral problems, including property damage, vocal disruption, incontinence, and aggression toward his peers, that resulted in Whitley's readmission to the SDC. When Whitley returned to the SDC in 1991, he initially lived in a locked residence known as Lathrop Cottage. In approximately 2001, Whitley moved into an unlocked residence known as Brent Cottage. While changes have been extremely difficult for' Whitley, he has shown improvement in this area. For example, Whitley has successfully adapted to numerous changes to his daily routine at SDC, such as the move from Lathrop Cottage to Brent Cottage, working on-site at the SDC folding laundry, and interacting with new staff members as turnover occurred.

For more than 20 years, Maldonado has been Whitley's conservator, concerned with his care and welfare. A staff report notes that because Whitley is unable to give informed consent for treatment, he "depends upon his sister/conservator to do so on his behalf." She has participated fully as a member of his Interdisciplinary Team (IDT)² and has participated in Whitley's annual Individual Program Plan (IPP) reviews.³ She and Whitley's other relatives have maintained close contact with Whitley, giving him family support. One of Whitley's nieces has visited him weekly at the SDC for the past four years. Another of Whitley's nieces has had him visit her at her home about once a month and for birthdays and holidays.

In the spring of 2005, Whitley's IDT began considering placing him at a community care facility in Fairfield called Miracle Lane. Miracle Lane is a small (4-5 residents) community-based residential facility that was opened specifically to accommodate persons with developmental disabilities who do not require an institutional setting. Once it identified Miracle Lane as a suitable community placement for Whitley, his IDT developed a multipart plan to assist his gradual transition to this facility.

As part of this transition planning process, the individual who operates Miracle Lane and members of his staff met with Whitley and members of the staff at the SDC. As a next step, Whitley and the SDC staff visited Miracle Lane, where Whitley met some of the staff and residents there. Whitley's sister, brother-in-law, niece and great niece also visited Miracle Lane. A day program, known as Dungarvin Day Program in Vacaville (Dungarvin), was also identified for Whitley to help him with community integration. The Dungarvin director met with Whitley at the SDC as well.

When Whitley's IDT held an IPP meeting on May 13, 20015, it discussed his placement at Miracle Lane. The report for this meeting shows that Maldonado and other family members attended this meeting and that Maldonado expressed her family's concerns about the distance they would have to travel to visit Whitley in Fairfield. The IDT believed, however, that Miracle Lane, presented a viable community placement option for Whitley and continued to pursue his placement there.

On June 9, 2005, Whitley's IDT "met to discuss his IPP, including, as the law requires, the prospects of community placement." Consistent with the statutory requirements, persons attending the meeting included members of the IDT, several staff from the SDC who had worked with Whitley, as well as representatives of Miracle Lane and Dungarvin, the planned community service providers.

Maldonado had asked to participate in the meeting by telephone, but somehow her number was incorrectly transcribed and the team's efforts to reach her were unsuccessful. Nevertheless, the meeting proceeded without Maldonado. The IDT concluded that Miracle Lane appeared to be an ideal community facility for Whitley, and, it was agreed to move forward with the final steps of the transition plan, selecting July 29, 2005, as the proposed date for his placement there.

Maldonado continued to voice her objection to the IDT's decision to place Whitley at Miracle Lane. Thereafter, the DDS (through the SDC) provided Maldonado with the documentation required under the settlement reached in Richard S., an unrelated federal action. As explained more fully in a later section of this opinion, the Richard S. settlement dictates the procedures to be followed when a member of the consumer's IDT objects to a community placement decision. The Richard S. documentation sent to Maldonado expressly stated family members had "a forum for expressing their disagreement [with the community placement decision]" and if they wished to do so, t...