SAMANTHA C v. State Dep't of Dev.AL Serv.

• Decision Date: 25 June 2010
• Docket Number: No. B211710.,B211710.
• Citation: 112 Cal.Rptr.3d 415,185 Cal.App.4th 1462
• Court: California Court of Appeals Court of Appeals
• Parties: SAMANTHA C., Plaintiff and Appellant, v. STATE DEPARTMENT OF DEVELOPMENTAL SERVICES et al., Defendants and Respondents.

185 Cal.App.4th 1462

112 Cal.Rptr.3d 415

SAMANTHA C., Plaintiff and Appellant,

v.STATE DEPARTMENT OF DEVELOPMENTAL SERVICES et al., Defendants and Respondents.

No. B211710.

Court of Appeal, Second District, Division 1, California.

June 25, 2010.

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Beltran, Beltran, Smith, Oppel & Mackenzie and Thomas E. Beltran, Burbank, for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Senior Assistant Attorney General, Richard T. Waldow, Supervising Deputy Attorney General, and Julie T. Trinh, Deputy Attorney General, for Defendants and Respondents State Department of Developmental Services and Terri Delgadillo.

Michelman & Robinson, Mona Z. Hanna, Encino, and Robin James, San Francisco, for Defendant and Respondent Harbor Regional Center.

MALLANO, P.J.

Samantha C. appeals from a judgment denying her petition for a writ of mandate and her request for declaratory relief. She seeks to overturn determinations by defendants Harbor Regional Center (HRC) and the state Department of Developmental Services (DDS) that she did not have a developmental disability and was therefore not entitled to services under the Lanterman Developmental Disabilities Services Act (Lanterman Act). (Welf. & Inst.Code, § 4500 et seq.) ¹ Section 4512(a) includes within the definition of developmental disability: mental retardation, cerebral palsy, epilepsy, autism, and disabling conditions closely related to, or requiring similar treatment to, mental retardation. Samantha also seeks to reverse the trial court's determination upholding the validity of provisions of section 54000, subdivision (c) of title 17 of the California Code of Regulations (regulation 54000(c)). ² We affirm that part of the judgment upholding the validity of the regulations because they are consistent with section 4512(a). But we reverse the trial court's determination that Samantha does not have a developmental disability under the Lanterman Act because Samantha has a disabling condition related to her birth injuries which requires “treatment similar to that required for individuals with mental retardation,” within the meaning of that part of section 4512(a) known as the fifth category.

BACKGROUND

A. Birth and Family Background

Samantha was born two and one-half months prematurely in June 1983 in Austria. According to Samantha's mother, Samantha was born severely underweight and with hypoxia (oxygen deprivation). She was administered oxygen for about a week after birth. At the time of Samantha's birth, doctors told Samantha's mother that Samantha had been deprived of oxygen for about 30 minutes and that oxygen deprivation can cause brain damage and problems with eyesight. Samantha also suffered hip dysplasia at birth, causing her lifelong gait and balance problems. Samantha's father was diagnosed with bipolar disorder and had a psychiatric hospitalization; Samantha's paternal aunt had a history of schizophrenia. There was domestic violence in the family home; Samantha claimed that there was “constant bickering.”

According to Samantha's mother, Samantha exhibited behavioral problems beginning at age two, with prolonged temper tantrums. In school, where Samantha was always in special education classes, her behavior was “generally overly-active, but controllable.” School psychologists who tested Samantha told Samantha's parents that oxygen deprivation at birth caused a “developmental disability in [Samantha's] brain,” which caused visual and auditory processing problems.

Samantha attended kindergarten in Long Beach, California. A 1989 psychological assessment by the Long Beach Unified School District noted that Samantha was diagnosed with “ ‘[m]oderate to moderately severe auditory attending and memory deficit, mild-moderate pragmatic language deficit, mild speech impairment.’ ” Samantha qualified for special education services even though she appeared to be functioning within the “average range of cognitive ability” because her academic achievement in reading, mathematics, and written language was significantly below her indicated level of ability ascertained through testing.

In 1990, the family moved to Canada. Samantha became upset when she learned the family was intending to move, and she was hospitalized for depression. A Canadian school neurocognitive assessment report in 1993 stated that Samantha repeated the first grade; she was then in a grade 3 placement, but was reading at a grade 2 level, writing at a grade 1 level, and her arithmetic skills were at a beginning grade 3 level. On the Wechsler Intelligence Scale for Children, third edition (WISC-III), her intellectual/cognitive abilities were assessed in the low average range.

In 1994, the family returned to Long Beach, where Samantha enrolled in the fourth grade. When Samantha was 11 years old, a psychiatrist prescribed Cylert for attention deficit disorder (ADD), and her parents and teacher noticed significant improvement in her condition for a few weeks, but the beneficial effects of the medication tapered off and her parents discontinued the medication.

The family moved to North Carolina, where Samantha attended several different high schools. According to Samantha's father, Samantha did not get as much help as she needed from the schools in North Carolina. Samantha's paternal aunt, Carol C., promised Samantha that she could live with her in Southern California if Samantha graduated from high school. Samantha wanted to move away from home because she felt her parents did not understand her, her brothers bullied her, and her sister was too bossy. While in high school, Samantha had a series of low level jobs, with supervision by family members. She worked as a dishwasher and server in restaurants; she had an internship and part-time job in a hotel. None of the jobs lasted longer than about nine or ten months. Samantha had difficulty getting along with people in the workplace and did not show up for work consistently.

Samantha earned grades of “A” through “D” in high school, and she claimed to have taken the math exit exam more than nine times before cheating in order to pass the test so she could live with Carol C. Immediately after obtaining her high school diploma in North Carolina, Samantha moved to California to live with Carol C.

Carol C. enrolled Samantha in several classes at Long Beach City College. She had difficulty with reading and writing, and testing in March 2003 revealed algebra readiness scores in the 18th percentile. Samantha claimed not to have remembered anything after two years of attending college. For four months in 2004, Samantha received tutoring from the Sylvan Learning Center in basic writing and math skills, but made no progress. Samantha's total math skills were at the fourth grade level; her vocabulary was at the 10th grade level and reading comprehension at the ninth grade level. According to Carol C., Samantha took a cake decorating class but could not follow written instructions or pay attention; Samantha did not understand measurement concepts. Samantha had no friends her own age; “[s]he can only really relate to people that are older because they spot [her] disability and they just give her a break.”

Samantha applied for and was approved for SSI disability benefits, as well as benefits from the Department of Health Services. With the assistance of her aunt, Samantha applied for HRC services in 2004. HRC denied Samantha's request for eligibility in July 2004, so Samantha reapplied for services in 2006, which application was also denied. In August 2006, Samantha requested a hearing before an administrative law judge (ALJ) to contest HRC's denial of services. An administrative hearing was held over the course of several days in October 2006 through May 2007.

In the meantime, Samantha was evaluated by numerous professionals, whose reports were admitted into evidence at the administrative hearing and are discussed below. In November 2005, Samantha also qualified for services from the California Department of Rehabilitation (DOR), with qualifying diagnoses of hip dysplasia, learning disorder, ADD, attention deficit/hyperactivity disorder (ADHD), and possible personality disorder. The DOR concluded that Samantha had the potential for selective competitive employment with a supportive employer, but she would need a sheltered workshop as a first step in her vocational rehabilitation. Through DOR, Samantha was eligible for an academic tutor, a mobility trainer, a job developer, and a job coach.

In 2006, Samantha attended child development classes through a regional occupational program and was interning at a preschool. In 2005, Samantha began taking Adderall, and for a while the medication helped her to focus on her classes. In August 2006, Samantha told her physician, Maureen Saunders, M.D., that she was pleased with her accomplishments, but in September 2006, Samantha reported that she was forgetful again and was frustrated with her inability to keep up with her class work. By December 2006, Samantha was attending her classes and completing her class work. According to Carol C., when Samantha was not taking her ADD medication, “she literally behaves like a slug. She doesn't get out of bed.... She doesn't actually hear what you're saying to her.”

B. Expert Evaluations 1. Armando de Armas, Ph.D.

HRC referred Samantha to psychologist Armando de Armas, Ph.D., who conducted an evaluation of her in June 2004. De Armas reported that Samantha, who was then 21 years old, was concerned because she was disorganized, had difficulty concentrating, and was not able to remember anything she learned; she spent most of her day watching television and staying at home; she wanted to learn to read a bus schedule, to drive a car, to manage money, and to live independently. De Armas...