Michelle v. Superior Court of Orange Cnty.

• Decision Date: 01 January 2013
• Docket Number: G048018
• Court: California Court of Appeals Court of Appeals
• Parties: MICHELLE K., an Incompetent Person, etc., Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Harbor Developmental Disabilities Foundation et al., Real Parties in Interest.

221 Cal.App.4th 409
164 Cal.Rptr.3d 232

MICHELLE K., an Incompetent Person, etc., Petitioner,
v.
The SUPERIOR COURT of Orange County, Respondent;
Harbor Developmental Disabilities Foundation et al., Real Parties in Interest.

G048018

Court of Appeal,
Fourth District, Division 3, California.

Filed 11/8/2013

See 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Writs, § 15.



Limitation Recognized

Cal. Welf. & Inst. Code § 4825.

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Caryl Lee, Judge. Petition granted in part and denied in part; writ issued. (Super. Ct. Nos. A169658 & 30–2012–00608957).

Locke Lord, Jon L. Rewinski and Matthew B. Nazareth, Los Angeles, 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, Beverly Hills, for Real Party in Interest Harbor Developmental Disabilities Foundation, doing business as Harbor Regional Center.

OPINION
ARONSON, J.

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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 (Hop ), original italics) and that 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.

I 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 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 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, 66 Cal.Rptr.3d 300.) 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, 66 Cal.Rptr.3d 300.)

“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, 66 Cal.Rptr.3d 300.)

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...