Filed 4/28/16 In re Donna P. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re DONNA P., a Developmentally
Disabled Person.
HARBOR DEVELOPMENTAL
DISABILITIES FOUNDATION, etc.,
                                                                       G050750
     Petitioner and Respondent,
                                                                       (Super. Ct. No. A189037)
         v.
                                                                       OPINION
JOSEPH P.,

     Objector and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Gerald G.
Johnston, Judge. Affirmed in part and reversed in part.
                   Locke Lord, Jon L. Rewinski and Matthew B. Nazareth for Objector and
Appellant.
                   No appearance for Respondent.
                   Suzanne Davidson, under appointment by Court of Appeal, for Donna P.
                                          *                  *                  *
              Donna P.1 is a 63-year-old, developmentally disabled person who has
resided at Fairview Developmental Center (Fairview) for more than 25 years. Since
1997, the trial court has authorized Donna’s Fairview residence based on a series of
placements under the Lanterman Developmental Disabilities Services Act (Lanterman
Act; Welf. & Inst. Code, § 4500 et seq.).2 The Harbor Regional Center initiated each of
these placements by petitioning for court approval, and Donna’s conservator, Joseph P.,
supported the ongoing placement.
              In an earlier writ proceeding, Joseph challenged a trial court order granting
a habeas corpus petition the Orange County Public Defender (Public Defender) filed to
obtain Donna’s release from Fairview. We issued an alternative writ directing the trial
court to vacate its order and enter a new order dismissing the habeas corpus petition
because the Public Defender failed to establish it had standing to bring the petition on
Donna’s behalf. Our alterative writ also directed the trial court to schedule a hearing on a
petition the Harbor Regional Center previously had filed seeking court approval of
Donna’s ongoing Fairview placement. We instructed the trial court to schedule and
conduct the hearing consistent with our decision in Michelle K. v. Superior Court (2013)
221 Cal.App.4th 409 (Michelle K.).
              In Michelle K., we concluded a developmentally disabled person has a due
process right to periodic judicial review of a state developmental center placement
because a developmental center is the most restrictive placement available under the
Lanterman Act and the placement constitutes a significant restraint on a person’s


       1
            For privacy reasons, we abbreviate the last name of Donna and her family
members, and will use only their first names. (See Welf. & Inst. Code, § 4502, subd. (b);
Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008, fn. 1.) No disrespect in
intended.
       2
             All further statutory references are to the Welfare and Institutions Code
unless otherwise stated.


                                             2
fundamental liberty interests. We also concluded a developmentally disabled person’s
equal protection rights required periodic judicial review because other adults placed in
similar protective custody under other statutory schemes have the right to periodic
judicial review of their confinement.
              As instructed, the trial court vacated its order granting the Public
Defender’s habeas corpus petition and entered a new order dismissing that petition, but
the Harbor Regional Center requested to withdraw its petition for court approval of
Donna’s ongoing Fairview placement before the hearing. The Harbor Regional Center
explained since it originally filed its petition over three years earlier it had determined a
less restrictive placement could meet Donna’s needs. The trial court allowed the Harbor
Regional Center to withdraw its petition and rejected Joseph’s contention Michelle K.
required the court to review the placement despite the Harbor Regional Center’s request.
The trial court also ordered Donna discharged from Fairview and placed in a facility
suitable to her needs. Joseph appealed.
              We affirm the portion of the trial court’s order refusing to review Donna’s
ongoing Fairview placement and allowing the Harbor Regional Center to withdraw its
petition for court approval of that placement. Michelle K. required judicial review for the
limited purpose of determining whether Donna’s disabilities continued to justify the
restraint on her personal liberty inherent in her ongoing developmental center placement.
That review serves as a constitutional safeguard to ensure the statutory scheme
authorizing the ongoing placement does not allow the Harbor Regional Center and Joseph
to indefinitely confine Donna in Fairview without any independent review.
              After the Harbor Regional Center withdrew its support for Donna’s
ongoing Fairview placement, however, judicial review was unnecessary because the
Lanterman Act does not permit Donna to remain at Fairview without the Harbor Regional
Center’s approval. The Harbor Regional Center’s decision to withdraw its placement
petition transformed this matter from an independent review of the ongoing placement’s

                                               3
constitutionality into a dispute between Joseph and the Harbor Regional Center over the
least restrictive placement capable of meeting Donna’s needs.
              It is well established the Lanterman Act’s administrative fair hearing
process provides the exclusive forum for resolving a dispute over whether a
developmentally disabled person should remain in a development center or transition into
a less restrictive community-based facility. Judicial review may be sought only after that
administrative remedy is exhausted. Michelle K. did nothing to change that basic rule.
The nature and purpose of the periodic judicial review Michelle K. requires to ensure the
constitutionality of Donna’s placement differs greatly from the dispute resolution hearing
under the fair hearing process.
              Joseph therefore must invoke the fair hearing process to challenge the
Harbor Regional Center’s decision to transfer Donna to a specific community-based
facility, and he may obtain judicial review only after that process has run its course. To
minimize the impact on Donna, Michelle K. and the Welfare and Institutions Code
prohibit the Harbor Regional Center from transferring Donna to another facility until all
issues concerning her placement are resolved and all services and supports she requires
are in place at the new facility. We therefore reverse the portion of the trial court’s order
directing the Harbor Regional Center to discharge Donna from Fairview because the
court did so without the Harbor Regional Center identifying a specific, less restrictive
facility that could receive Donna and meet her needs.

                                              I

                            FACTS AND PROCEDURAL HISTORY

              Donna is a 63-year-old, developmentally disabled adult with an estimated
IQ of 46. She has been diagnosed with moderate mental retardation, congenital
hydrocephalus, hypocalcemia, ataxia, and ocular hypertension. Donna is able to
communicate with yes or no answers and simple phrases, but her ability to comprehend


                                              4
others is limited and her speech is difficult to understand for people who do not know her
well. She is ambulatory and possesses both fine and gross motor skills, but requires
24-hour total care and supervision because she is unable to independently perform the
activities of daily living.
               Donna originally was admitted to Fairview in 1989, after the facility where
she previously resided closed. Since 1997, she has remained at Fairview based on a
series of placements under the Lanterman Act. Donna’s only sibling, her brother
Matthew, also is developmentally disabled and he too resides at Fairview. The trial court
has annually reviewed the suitability of Donna’s ongoing Fairview placement under
In re Hop (1981) 29 Cal.3d 82 (Hop) and section 4825. The Harbor Regional Center
initiated each of these annual “Hop reviews” by requesting court approval for Donna to
remain at Fairview. The court appointed the Public Defender to serve as Donna’s
attorney during each Hop review and ultimately approved Donna’s continued Fairview
placement subject to “further judicial review within one (1) year.”
               In 2004, the trial court appointed Donna’s father, Joseph, and Dennis W.
Wells and Alexine M. Wells as Donna’s limited conservators under the Probate Code.
The court granted Joseph and his coconservators the power “to fix the residence or
specific dwelling of [Donna],” give or withhold medical consent, and contract on
Donna’s behalf. The court has investigated and reviewed this limited conservatorship
every two years, but has not found any grounds to modify or terminate it.
               The Harbor Regional Center filed its most recent “Hop petition” in
February 2011, explaining “there is no known suitable, legally available placement [for
Donna] that is less restrictive than the proposed state developmental center placement.”
In October 2011, while that petition remained pending, the Public Defender filed a
habeas corpus petition on Donna’s behalf, alleging Donna’s ongoing Fairview placement
unlawfully restrained her personal liberty because it was not the least restrictive
placement capable of meeting her needs. In April 2012, the trial court granted the habeas

                                              5
corpus petition and directed the Harbor Regional Center to identify an available
community placement for Donna within one year.
               After unsuccessfully challenging the trial court’s order through the
Lanterman Act’s administrative fair hearing process, Joseph filed a petition for writ of
mandate or prohibition to prevent the trial court from ordering Donna moved to a new
facility. Joseph argued the trial court’s order should be vacated and the habeas corpus
petition dismissed because the Public Defender lacked authority to file it on Donna’s
behalf. According to Joseph, all reviews concerning Donna’s Fairview placement must
be conducted through the Lanterman Act’s administrative fair hearing process, not in
court.
               In August 2014, this court issued an alternative writ of mandate directing
the trial court to set aside its order granting the Public Defender’s habeas corpus petition,
and instead “enter a new and different order (1) dismissing the habeas petition; and
(2) setting a hearing on the pending Hop petition to review the continued placement of
. . . Donna P. at Fairview Developmental Center consistent with this court’s decision in
Michelle K.”
               Michelle K. held the Public Defender lacked standing to file a habeas
corpus petition on behalf of a developmentally disabled person placed in a state
developmental center, unless the Public Defender established “‘“very exceptional
circumstances”’” justifying the petition, such as the absence of anyone else to file it on
the developmentally disabled person’s behalf, and the lack of any other adequate remedy
to challenge the developmental center placement. (Michelle K., supra, 221 Cal.App.4th
at pp. 420, 431-432.) In Michelle K., we concluded a pending Hop petition provided an
adequate remedy, and therefore the Public Defender generally may not pursue habeas
corpus relief when a Hop petition is pending. (Michelle K., at pp. 432-433.) As more
fully explained below, Michelle K. also held an indefinite placement at a developmental
center constitutes a significant restraint on a developmentally disabled person’s

                                              6
fundamental liberty interests, and therefore the person’s due process and equal protection
rights required periodic judicial review to ensure the person’s disabilities continue to
warrant placement in the most restrictive environment available under the Lanterman
Act. (Michelle K., at pp. 420-421, 438-439.)
              The trial court dismissed the Public Defender’s habeas corpus petition and
set a status conference to discuss scheduling a trial on the Harbor Regional Center’s
pending Hop petition. At the status conference, however, the Harbor Regional Center
made an oral motion to withdraw its Hop petition because it concluded the circumstances
had changed since it originally filed the petition, and it no longer sought to maintain
Donna’s placement at Fairview. The Harbor Regional Center explained it could not
pursue the Hop petition in good faith because it no longer believed Fairview was the least
restrictive placement capable of meeting Donna’s needs.
              The trial court granted the request and allowed the Harbor Regional Center
to withdraw the pending Hop petition over Joseph’s objection and his request that the
court delay ruling on the matter until he had an opportunity to brief the issue. The court
explained there was no need to judicially review Donna’s ongoing Fairview Placement
once the Harbor Regional Center withdrew its support for that placement because Donna
may not remain at Fairview without the Harbor Regional Center’s approval.
              After the trial court allowed the Harbor Regional Center to withdraw its
Hop petition, the Public Defender requested the trial court also order Donna discharged
from Fairview because there was no legal basis to keep her there. The Public Defender
argued this additional order was necessary to place pressure on the Harbor Regional
Center to work diligently to find a new placement for Donna, and also to put pressure on
Joseph to cooperate with those efforts. The Harbor Regional Center supported the
request.
              The trial court agreed and included the following statement in its order
allowing the Harbor Regional Center to withdraw its Hop petition: “Donna . . . is ordered

                                              7
discharged from Fairview Developmental Center and she is to be placed into a suitable
placement for her needs.” Joseph appealed.

                                             II

                                        DISCUSSION

A.     The Lanterman Act and State Developmental Center Placements
              The Lanterman Act “‘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.’” (In re Michael K. (2010) 185 Cal.App.4th 1112, 1117
(Michael K.).) “The Legislature enacted the Lanterman Act 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.’”
(Ibid.) “These [rights] include the ‘right to treatment and habilitation services and
supports in the least restrictive environment’ and the ‘right to dignity, privacy, and
humane care,’ with treatment, services and supports provided in natural community
settings to the maximum extent possible.” (Capitol People First v. State Dept. of
Developmental Services (2007) 155 Cal.App.4th 676, 682 (Capitol People).)
              “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.)” (Michelle K.,
supra, 221 Cal.App.4th at p. 422.)
              “The state contracts with private nonprofit corporations to establish and
operate a network of 21 regional centers [including the Harbor Regional Center] that are
responsible for determining eligibility, assessing needs, and coordinating and delivering
direct services to developmentally disabled persons and their families. [Citation.] The


                                              8
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.’ [Citation.] The
state ‘allocates funds to the centers for operations and the purchasing of services,
including funding to purchase community-based services and supports.’” (Michelle K.,
supra, 221 Cal.App.4th at p. 422.)
              “‘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).)’” (Michelle K., supra,
221 Cal.App.4th at p. 422.) The developmentally disabled person and his or her
conservator or representative are statutorily guaranteed “the opportunity to actively
participate in the development of the [IPP].” (§ 4646, subd. (b).)
              “Before July 1, 2012, a nondangerous, developmentally disabled person
could be admitted to a state developmental center in two ways. First, the 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

                                              9
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.” (Michelle K., supra, 221 Cal.App.4th at pp. 422-423.)
              “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.” (Michelle K., supra,
221 Cal.App.4th at p. 423.)
              “These recent Welfare and Institutions 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).)” (Michelle K., supra,
221 Cal.App.4th at p. 423.) The Legislature required the regional center to complete this
assessment by December 31, 2015 (§ 4418.25, subd. (c)(2)(C)), and the assessment must
be “updated annually as part of the individual program planning process for as long as the
[developmentally disabled person] resides in the developmental center” (§ 4418.25,

                                             10
subd. (c)(2)(E)). When a community-based placement is identified and selected, all
necessary services and supports must be in place before transferring a nondangerous,
developmentally disabled person from a developmental center to the community-based
living arrangement. (§ 4418.3, subd. (a).)
              “[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]’ the right to an administrative fair hearing. (§ 4710.5, subd. (a).) The statute also
provides 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. (§§ 4710.5, subd. (a); 4710.6, subds. (a), (b); 4710.7;
4710.8; 4710.9; 4711.5.)” (Conservatorship of Whitley (2007) 155 Cal.App.4th 1447,
1459-1460 (Whitley).)
              “The [Department of Developmental Services] is required to ‘contract for
the provision of independent hearing officers’ to conduct the hearing. (§ 4712, subd. (b).)
The hearing officer is required to have special training in the law applicable to the
developmentally disabled and the services available to them and the law of administrative
hearings. (§§ 4710.5, subd. (a); 4712, subd. (b).) The agency awarding the contract for
independent hearing officers ‘shall biennially conduct, or cause to be conducted, an
evaluation of the hearing officers who conduct’ administrative fair hearings. (§ 4712,
subd. (n).)” (Whitley, supra, 155 Cal.App.4th at p. 1460.)
              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 witnesses, the right to appear through counsel
or other representatives, and the right of access to records. (Whitley, supra,
155 Cal.App.4th at p. 1460; see Michelle K., supra, 221 Cal.App.4th at p. 424.) Absent a
showing of good cause, the regional center presents its witnesses and all other evidence
first followed by the claimant’s presentation of his or her case. (§ 4712, subd. (j);

                                             11
Whitley, at p. 1460.) A recording of the proceedings must be made at public expense.
(§ 4712, subd. (k); Whitley, at p. 1460.)
              “Within 10 working days of the fair hearing, the hearing officer must
‘render a written decision’ containing ‘a summary of the facts, a statement of the
evidence from the proceedings that was relied upon, a decision on each of the issues
presented, and an identification of the statutes, regulations, and policies supporting the
decision.’ (§ 4712.5, subds. (a) & (b).)” (Whitley, supra, 155 Cal.App.4th at
pp. 1460-1461.) “Either side may seek judicial review of the administrative decision
through a writ of administrative mandamus.” (Michelle K., supra, 221 Cal.App.4th at
p. 424.)
              In Hop, the Supreme Court examined the constitutionality of section 4825,
which was the Lanterman Act provision that previously allowed a developmentally
disabled person to be indefinitely confined in a state developmental center based on a
request by the person’s parent or conservator, a recommendation by a regional center,
and the absence of any objection from the person or the person’s representative. (Hop,
supra, 29 Cal.3d at pp. 87-88; Michelle K., supra, 221 Cal.App.4th at pp. 426-427.) The
Hop court explained personal liberty is a fundamental right both the United States and
California Constitutions guarantee to all individuals, including developmentally disabled
individuals, and placing a person in a developmental center is a significant restraint on
the person’s liberty interests because it is essentially a civil confinement. This restraint
therefore required application of criminal due process standards to test the confinement’s
validity, including a judicial hearing to determine whether the person’s disabilities
warranted the confinement. (Hop, at pp. 89, 92; Michelle K., at p. 427.)
              The Hop court also concluded a developmentally disabled person’s equal
protection rights required a judicial hearing before confining the person in a state
development center under section 4825. No other similarly situated adult in need of
protective custody lawfully could be placed in a developmental center without a judicial

                                              12
determination the placement was appropriate, including proposed conservatees under the
Lanterman-Petris-Short Act (LPS Act; § 5000 et seq.) and proposed committees under
section 6500 et seq., both of whom have a statutory right to judicial review before being
confined in a developmental center. (Hop, supra, 29 Cal.3d at pp. 92-94; Michelle K.,
supra, 221 Cal.App.4th at p. 428.) The Hop court therefore imposed preconfinement
judicial review as a constitutional safeguard to ensure section 4825 placement in a
developmental center did not deprive a developmentally disabled person of his or her
personal liberty without due process and equal protection of the laws. This review
includes the right to a jury trial on demand, application of the beyond reasonable doubt
standard of proof, and the right to appointed counsel. (Hop, at pp. 93-94; Michelle K., at
p. 428.) Without this review, the Supreme Court explained placement under section 4825
would be unconstitutional. (Michelle K., at p. 428.)
              In Michelle K., we concluded a developmentally disabled person’s
fundamental right to personal liberty also required periodic judicial review of an ongoing
section 4825 developmental center placement to ensure the person’s disabilities
continued to warrant the placement. We explained, “The impairment of the committee’s
personal liberty is not diminished by residing in the developmental center for an extended
period of time, especially when there are continuing advancements in both the treatment
of numerous disabilities and the availability of less restrictive services in community-
based and other facilities. No other class of similarly situated adults may lawfully remain
in a state developmental center indefinitely without further judicial review of their
ongoing placement. For example, the LPS Act and section 6500 et seq. place limits on
the length of confinement for a gravely disabled person or a person believed to be a
danger to self or others, and both statutory schemes also require judicial review to
recommit the person or extend the initial confinement. [Citations.] [¶] The Lanterman
Act does not limit the length of a section 4825 placement or require judicial review of the
placement. Accordingly, unless Hop requires a further judicial review of a section 4825

                                             13
placement, Michelle and others similarly situated could face a lifetime placement in a
developmental center based solely on an initial judicial determination regarding the
placement’s suitability. . . . That result is simply inconsistent with the constitutional
principles articulated in Hop.” (Michelle K., supra, 221 Cal.App.4th at pp. 438-439.)
              We emphasized periodic Hop reviews are limited to determining whether
the developmentally disabled person’s disabilities continue to justify the restraints on the
person’s fundamental liberty interests that are inherent in a state developmental center
placement. (Michelle K., supra, 221 Cal.App.4th at p. 443.) The jurisdiction to conduct
these reviews “does not confer or create jurisdiction to monitor the ongoing placement or
make decisions regarding the details of the services the developmentally disabled person
receives.” (Id. at p. 441.)

B.     Michelle K. Did Not Require the Trial Court to Review Donna’s Ongoing
       Fairview Placement After the Harbor Regional Center Withdrew Its Hop Petition
              Joseph contends Michelle K. required the trial court to conduct a periodic
Hop review of Donna’s ongoing Fairview placement even after the Harbor Regional
Center withdrew its Hop petition and no longer supported that placement. According to
Joseph, Michelle K. established that all developmentally disabled persons have a
constitutional right to periodic judicial review of their placement in a state developmental
center while confined there. Joseph misconstrues Michelle K. and the statutory scheme
governing developmental center placement under the Lanterman Act.
              Michelle K. did not establish a constitutional right to judicial review of the
services and supports a developmentally disabled person receives under the Lanterman
Act. Rather, Michelle K. requires periodic judicial reviews for the limited purpose of
determining whether a developmentally disabled person’s disabilities continue to justify
the restraint on personal liberty inherent in a placement at the most restrictive facility
available under the Lanterman Act. (Michelle K., supra, 221 Cal.App.4th at
pp. 441-442.) As we explained, the purpose of periodic Hop reviews is to ensure a

                                              14
developmentally disabled person’s representative, a regional center, and a developmental
center do not unconstitutionally deprive the person of his or her liberty by keeping the
person indefinitely confined in a developmental center without any independent review.
(Michelle K., at p. 443.) The periodic judicial review Hop and Michelle K. require is a
constitutional safeguard designed to render an otherwise unconstitutional statutory
scheme constitutional; it is not a procedural mechanism to help a developmentally
disabled person enforce his or her right to receive certain services and supports under the
Lanterman Act. (Michelle K., at pp. 428, 441; see Hop, supra, 29 Cal.3d at pp. 92-94;
Michael K., supra, 185 Cal.App.4th at 1128, quoting In re Borgogna (1981)
121 Cal.App.3d 937, 946 [“Hop does not address the issue ‘where the [regional] center
seeks to deescalate or make less restrictive the placement, but the ward opposes such a
transfer’”].)
                Once the Harbor Regional Center withdrew its support for Donna’s
placement at Fairview, Hop and Michelle K. no longer required judicial review to ensure
Donna’s disabilities justified her ongoing confinement in a state developmental center
because Donna may not remain at Fairview without the Harbor Regional Center’s
approval. As explained above, the Harbor Regional Center is responsible for determining
Donna’s eligibility to receive Lanterman Act services and supports, assessing her needs,
and coordinating and delivering her services and supports. (Michelle K., supra,
221 Cal.App.4th at p. 422; Capitol People, supra, 155 Cal.App.4th at pp. 682-683.)
Donna could not be admitted to Fairview without the Harbor Regional Center’s approval,
nor could her admission be renewed without its approval. (See § 4653; Hop, supra,
29 Cal.3d at p. 87; Michelle K., at pp. 423, 426-427.)3

       3
              Because section 4653 states “no developmentally disabled person shall be
admitted to a state hospital except upon the referral of a regional center” (italics added),
Joseph contends the section only applied to Donna’s initial admission to Fairview, and
therefore he may maintain Donna’s Fairview placement without the Harbor Regional
Center’s approval. Joseph cites no authority to support this contention, and ignores the

                                             15
              Although Joseph contends the trial court must review Donna’s Fairview
placement because he believes it is the least restrictive placement capable of meeting her
needs, he lacks the authority to keep her at Fairview without the Harbor Regional
Center’s approval, and therefore a periodic Hop review is unnecessary. He relies on his
authority as Donna’s limited conservator to fix her residence, but he was appointed her
conservator under the Probate Code, and Probate Code conservators lack the authority to
place a conservatee in a state developmental center without court approval.4 (See
Michelle K., supra, 221 Cal.App.4th at pp. 425, fn. 3, 429; People v. Karriker (2007)
149 Cal.App.4th 763, 779-780.) Joseph also points to his statutory right as Donna’s
conservator to actively participate in the individual program planning process required to
identify the services and supports the Harbor Regional Center will provide or arrange for
Donna. (See § 4646, subd. (b).) That right of participation, however, merely ensures
Joseph has the opportunity to provide input regarding Donna’s placement; it does not
allow him to override the Harbor Regional Center’s placement determination reached
through the individual program planning process. (See Capitol People, supra,
155 Cal.App.4th at pp. 698-699 [“while the Lanterman Act does demonstrate an intent to
include family members and conservators in the decision-making process affecting
persons with disabilities [citations], it provides them scant concrete rights”].)


Harbor Regional Center’s responsibilities to determine eligibility, assess needs, and
coordinate and deliver services and supports. Moreover, Joseph overlooks that Donna
has remained at Fairview based on a series of court orders authorizing placement for one
year subject to further court approval. Each time the Harbor Regional Center applied for
court approval it therefore was essentially a new placement. (See Michelle K., supra,
221 Cal.App.4th at pp. 437-438.)
       4
              Prior to July 1, 2012, a conservator appointed under the LPS had authority
to place a conservatee in a state developmental center or other locked treatment facility if
the conservator determined it was the least restrictive placement. (Michelle K., supra,
221 Cal.App.4th at p. 425.) The 2012 amendments to the Welfare and Institutions Code
withdrew that authority. (Ibid.)


                                              16
              The Harbor Regional Center’s withdrawal of its Hop petition and support
for Donna’s ongoing Fairview placement therefore transformed this matter from an
independent review to ensure the placement’s constitutionality into a dispute between
Joseph and the Harbor Regional Center about which specific facility provides the least
restrictive placement capable of meeting Donna’s needs. That dispute is not the proper
subject of a periodic Hop review. (See Michelle K., supra, 221 Cal.App.4th at p. 444
[periodic Hop review “is limited to deciding whether appropriate efforts have been made
to identify a less restrictive facility that satisfies all of Michelle’s needs and whether at
least one such facility exists”].)
              The Lanterman Act’s “fair hearing procedures provide the exclusive
remedy for a developmentally disabled person’s legal representative to object to a
community placement decision.” (Michelle K., supra, 221 Cal.App.4th at p. 442; see
Michael K., supra, 185 Cal.App.4th at pp. 1125-1126; Whitley, supra, 155 Cal.App.4th at
pp. 1462-1464.) In Michael K. and Whitley, the Courts of Appeal held a dispute over
whether a developmentally disabled person should remain in a state developmental center
or be transferred to a community-based placement must be resolved through the
Lanterman Act’s fair hearing process, and judicial review may be sought only after
exhausting that exclusive administrative remedy. (Michael K., at pp. 1116-1117,
1125-1126; Whitley, at pp. 1455-1457, 1462-1464.) As the Whitley court explained, this
conclusion is compelled by the comprehensive nature of the administrative procedures
the Lanterman Act establishes, the Legislature “expressly making [the] fair hearing
[process] the exclusive remedy for issues relating to the provision of services” under the
Lanterman Act, and the common law exhaustion of administrative remedies doctrine,
which makes “‘exhaustion of the administrative remedy . . . a jurisdictional prerequisite
to resort to the courts.’” (Whitley, at p. 1463.)
              In deciding Michelle K., we took care to distinguish between the nature and
purpose of a periodic Hop review, and the nature and purpose of the administrative fair

                                              17
hearing process: “Hop requires periodic independent reviews to ensure a section 4825
developmental center placement does not violate a developmentally disabled person’s
constitutional rights. The reviews ensure the person’s disabilities continue to warrant
placement in the most restrictive environment available under the Lanterman Act. In
contrast, the fair hearing procedures provide an administrative process for a
developmentally disabled person or her representative to challenge a regional center’s or
developmental center’s decision to change the person’s placement or other services.
Through the process, a mediator or hearing officer with subject matter expertise resolves
specific challenges to a decision changing the services the developmentally disabled
person receives.” (Michelle K., supra, 221 Cal.App.4th at p. 443.) Michelle K. therefore
did not require the trial court to conduct a periodic Hop review after the Harbor Regional
Center withdrew its support for Donna’s ongoing Fairview placement. Instead, under
Michelle K. Joseph may invoke the fair hearing process once the Harbor Regional Center
identifies a specific facility as Donna’s new placement.
              Joseph also contends Michelle K. required the trial court to review Donna’s
Fairview placement because it has been more than five years since Donna’s placement
has been judicially reviewed because of the delays in resolving earlier disputes. The
periodic judicial review mandated by Michelle K., however, is forward looking, asking
whether Donna’s disabilities continue to justify her ongoing placement at Fairview. The
Harbor Regional Center already has answered that question by withdrawing its Hop
petition and asserting Donna’s disabilities do not warrant her continued placement at
Fairview. A periodic Hop review therefore is not necessary to make that determination,
and, as explained above, the dispute between Joseph and the Harbor Regional Center
about the appropriate placement for Donna must be resolved through the Lanterman
Act’s fair hearing process.
              Moreover, Donna’s constitutional rights are not violated by the delays
inherent in the process of identifying and moving her to the least restrictive facility

                                             18
capable of meeting her needs. As we recognized in Michelle K., Donna “should not be
transferred until all issues regarding her new placement are resolved [because] . . . ‘“[her]
precipitous release . . . to [her] famil[y or] a[] community facilit[y] unprepared to care for
[her] could be both disruptive to [her] treatment program and potentially harmful to
[Donna] and the community.”’” (Michelle K., supra, 221 Cal.App.4th at p. 444.) The
Welfare and Institutions Code also prohibits Donna’s transfer to a new facility until all
necessary services and supports are in place. (§ 4418.3, subd. (a).) If the delays inherent
in finding a new placement for Donna and transitioning her to it become excessive or
unreasonable, then Joseph, or the Public Defender if it can make the showing we
described in Michelle K. (Michelle K., supra, 221 Cal.App.4th at pp. 431-432), may
petition on Donna’s behalf for habeas corpus relief to compel judicial review of the
efforts to move Donna to a new facility.5
              The record does not reveal whether the Harbor Regional Center has
identified a specific community-based facility that it contends is capable of meeting
Donna’s needs.6 The 2012 amendments to the Welfare and Institutions Code required the
Harbor Regional Center to conduct a comprehensive assessment of Donna’s needs and
identify the types of community-based services and supports that are capable of meeting
those needs. (§ 4418.25, subd. (c)(2)(A) & (B).) The Harbor Regional Center was
required to complete that assessment by the end of 2015, and then to share it with
Donna’s individual program planning team to assist it in determining the least restrictive

       5
             There is no need for the Harbor Regional Center to seek habeas corpus
relief on Donna’s behalf because it can overcome any delays injected into the process by
Joseph or anyone else by determining Donna should be transitioned to a particular facility
and thereby compelling Joseph to invoke the fair hearing process to challenge that
determination.
       6
               In the trial court, the Public Defender identified two facilities as less
restrictive facilities capable of meeting Donna’s needs, but there is no indication the
Harbor Regional Center agreed those facilities were capable of meeting Donna’s needs.


                                             19
placement available for her. (§ 4418.25, subd. (c)(2)(C) & (D).) We presume the Harbor
Regional Center has performed its statutory duties, and if it has not, Joseph, or potentially
the Public Defender, may bring an action to compel the Harbor Regional Center to do so.
A periodic Hop review, however, may not be used for that purpose.
              Finally, Joseph contends the trial court should have proceeded with the
periodic Hop review because Michelle K. recognized Joseph’s due process right to have a
jury determine whether Donna should remain at Fairview regardless of Harbor Regional
Center’s position. Not so. Michelle K. addressed Donna’s constitutional rights as a
developmentally disabled person confined in a state developmental center under the
Lanterman Act. Although Joseph may exercise some of Donna’s rights as her
conservator, the rights belong exclusively to Donna. (Capitol People, supra,
155 Cal.App.4th at p. 699 [“under the Lanterman Act it is the individual with a
developmental disability—not his or her family, friends, or conservator—who is afforded
all the legal rights and responsibilities guaranteed by the United States and California
Constitutions”].) Nothing we said in Michelle K. recognized any right in Joseph to have
a jury determine Donna’s proper placement. Any conclusion to the contrary would allow
Joseph to circumvent the Lanterman Act’s fair hearing process as the exclusive means for
resolving disputes about the proper services and placement for a developmentally
disabled person.7




       7
              Joseph also contends the trial court violated the alternative writ we issued
by allowing the Harbor Regional Center to withdraw its Hop petition and failing to
conduct a periodic Hop review regarding Donna’s Fairview placement. Not so. Our writ
merely instructed the trial court to set a hearing on the Harbor Regional Center’s pending
Hop petition. Once the Harbor Regional Center withdrew its petition and support for
Donna’s continued placement at Fairview, there was nothing about which the trial court
could conduct a hearing because, as explained above, Donna may not remain at Fairview
without the Harbor Regional Center’s approval.


                                             20
C.     The Trial Court Erred In Ordering Donna Discharged from Fairview
               In allowing the Harbor Regional Center to withdraw its Hop petition, the
trial court also ordered Donna discharged from Fairview and placed in a facility suitable
to her needs. The trial court made this additional order at the Public Defender’s and the
Harbor Regional Center’s request. Neither of those parties, however, has seen fit to file a
brief in this court to justify that order.
               We reverse this aspect of the trial court’s order because no legal basis
authorized the court to order Donna discharged from Fairview without the Harbor
Regional Center identifying a specific, less restrictive facility capable of accepting Donna
and meeting her needs. As explained above, the Welfare and Institutions Code prohibits
the transfer of a developmentally disabled person from a developmental center to another
facility unless all necessary services and supports are in place at that new facility.
(§ 4418.3, subd. (a); see Michelle K., supra, 221 Cal.App.4th 444.) That cannot occur
when the facility itself has not been identified.

                                                 III
                                             DISPOSITION

               The order is affirmed in part and reversed in part. The portion of the order
allowing the Harbor Regional Center to withdraw its Hop petition and declining to
conduct a periodic Hop review is affirmed. The portion of the order discharging Donna




                                                 21
from Fairview is reversed. In the interest of justice, all parties shall bear their own costs
on appeal.



                                                   ARONSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



FYBEL, J.




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