Field 11/12/13 Raymond C. v. Super. Ct. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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


RAYMOND C. et al.,

     Petitioners,

         v.                                                            G046836

THE SUPERIOR COURT OF ORANGE                                           (Super. Ct. Nos. A169785 &
COUNTY,                                                                30-2011-00530355)

     Respondent;                                                       OPINION

JOHN C. et al.,

     Real Parties in Interest.



                   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; writ issued.
                   Locke Lord, Jon L. Rewinski, Stephen A. Tuggy and Matthew B. Nazareth
for Petitioners.
              Farella Braum + Martel, Mark D. Petersen and Alex Reese for California
Association of State Hospital Parent Councils for the Retarded as Amicus Curiae on
behalf of Petitioners.
              Law Offices of Brian D. Rondon and Brian D. Rondon for Parent Hospital
Association of Sonoma Developmental Center as Amicus Curiae on behalf of Petitioners.
              Law Offices of Christopher A. Poulos and Christopher A. Poulos for
Parents Coordinating Council of Lanterman Developmental Center as Amicus Curiae on
behalf of Petitioners.
              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 John C.
              Enright & Ocheltree, Judith A. Enright and Julie A. Ocheltree for Real
Party in Interest Harbor Developmental Disabilities Foundation, doing business as
Harbor Regional Center.
              William Leiner, Dara Schur, Connie Chu and Monisha Coelho for
Disability Rights California and National Disability Rights Network as Amici Curiae on
behalf of Real Party in Interest John C.
              Michelman & Robinson, Mona Z. Hanna, Jeffrey D. Farrow and Robin
James for Association of Regional Center Agencies, Inc., as Amicus Curiae on behalf of
Real Party in Interest Harbor Developmental Disabilities Foundation, doing business as
Harbor Regional Center.
                               *              *             *
              Petitioners Raymond C., Carol C., and Andrea C. (collectively, Petitioners),
who are coconservators for real party in interest John C.,1 seek writ relief to prevent the



       1       We abbreviate the last name of John and his family members, and will use
only their first names, to protect John’s privacy. (See Welf. & Inst. Code, § 4502,

                                              2
trial court from conducting an evidentiary hearing on a habeas corpus petition the Orange
County Public Defender (Public Defender) filed on John’s behalf to obtain his release
from Fairview Developmental Center (Fairview). John is a 57-year-old, developmentally
disabled adult who has resided at Fairview for more than 47 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 John and the Lanterman Act mandates placement of
developmentally disabled persons in the least restrictive environment capable of meeting
their needs. Petitioners contend the Public Defender lacks authority to pursue the habeas
corpus petition because they, as John’s legal representatives, believe Fairview is the best
placement for John.
              We agree the Public Defender lacks authority to pursue the habeas corpus
petition on John’s behalf. Supreme Court precedent establishes that 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 (Hop), original italics) and that other available remedies for
challenging the placement are inadequate (In re Gandolfo (1984) 36 Cal.3d 889, 897-900
(Gandolfo)). We conclude very exceptional circumstances are not present in this case
and the existing remedies are adequate because John’s Fairview placement has been
subject to periodic judicial review for nearly 20 years, a hearing on the next periodic




subd. (b); Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008, fn. 1 (Susan T.).)
No disrespect is intended.
       2     All further statutory references are to the Welfare and Institutions Code
unless otherwise stated.


                                             3
review already was scheduled when the Public Defender filed the habeas corpus petition,
and the Public Defender failed to show Petitioners are not acting in John’s best interest.
              Although we agree with Petitioners the Public Defender may not pursue its
habeas corpus petition, we do not agree with their contention the Lanterman Act’s
administrative fair hearing procedures deprive the trial court of jurisdiction to
periodically review John’s placement. The fair hearing procedures provide the exclusive
means for challenging a specific decision to change John’s placement or the other
services he receives, but those procedures do not prevent the trial court from periodically
reviewing whether his 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 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.
              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 John’s behalf,
and (2) proceed with the Hop review hearing on John’s Fairview placement.

                                              I

                                   LEGAL BACKGROUND
              To explain the roles performed by the various persons and entities involved
in John’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


                                              4
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.

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 (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.) The regional centers’ purpose is to “assist persons with developmental
disabilities and their families in securing those services and supports which maximize



                                              5
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 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 also
§ 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.

                                             6
              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 (Whitley); § 4704.) The
fair hearing procedures are designed to decide “all issues concerning the rights of persons
with developmental disabilities to receive services under [the Act].” (§ 4706, subd. (a).)
The fair hearing procedures include “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

                                              7
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. (Id. at
pp. 1460-1461.) Either side may seek judicial review of the administrative decision
through a writ of administrative mandamus.3 (See In re Michael K. (2010)
185 Cal.App.4th 1112, 1126 (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.) 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

       3       Amici Curiae Disability Rights California and National Disability Rights
Network requested that we judicially notice (1) a Web site printout providing the
historical populations of California’s state developmental centers; (2) the California
Department of Developmental Services’ Quarterly Client Characteristics Report from
December 2012; and (3) testimony by the mother of a developmentally disabled adult
from an April 27, 2010 Joint Oversight Hearing before the Assembly Committee on
Human Services and the Assembly Select Committee on Disabilities regarding the “Final
Report on Closure of Agnews Developmental Center: Keeping the Promise of the
Lanterman Act.” We deny the request because these documents are irrelevant to whether
the Public Defender is authorized to bring a habeas corpus petition under section 4800
and whether Hop authorizes the trial court to periodically review developmental center
placements under the Lanterman Act. (Mangini v. R. J. Reynolds Tobacco Co. (1994)
7 Cal.4th 1057, 1063 (Mangini) [“Although a court may judicially notice a variety of
matters [citation], only relevant material may be noticed” (original italics)], overruled on
other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)


                                              8
“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 [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 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 (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,

                                             9
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.) 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.4 (§§ 5353, 5358, 6000, subd. (a)(1); In re Violet C.
(1989) 213 Cal.App.3d 86, 91 (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. (§ 6500, subd. (b)(5).) The petition may be brought at the request of the parent,
guardian, conservator, or other person charged with the support of the developmentally
disabled person, the regional center director or his or her designee, or several other
statutorily designated individuals.5 (§ 6502.) The person who may be committed has a

       4       A conservator appointed under the Probate Code lacks the authority to
place the conservatee in a locked facility. (People v. Karriker (2007) 149 Cal.App.4th
763, 780 (Karriker) [“‘The primary difference between a Probate Code conservator and
an LPS conservator is the LPS conservator’s power to place the conservatee in a locked
facility, an action that a Probate Code conservator cannot take’”].)
       5    Section 6500 et seq. addresses not only developmentally disabled persons
who are dangerous to themselves or others, but also developmentally disabled persons

                                             10
right to appointed counsel, a jury trial, proof beyond a reasonable doubt, and a unanimous
verdict regarding the petition. (§ 6500, subd. (b)(5); Roulet, supra, 23 Cal.3d at p. 235.)
              Before July 1, 2012, if the trial court found the person to be
developmentally disabled and a danger to himself, herself, or others, the court could order
the person committed to the State Department of Developmental Services for suitable
treatment and habilitation services. (Former § 6509; see Stats. 1996, ch. 1076, § 8.5,
p. 7268.) Former section 6509, subdivision (a), defined suitable treatment and
habilitation services as the least restrictive residential placement necessary to achieve the
purposes of the treatment, and included any state hospital, state developmental center,
community care facility, or health facility the court found to be the most appropriate
alternative following a hearing on the subject. The commitment order automatically
expired one year after it was made. (Former § 6500; Stats. 1996, ch. 1076, § 5, p. 7265.)
              Effective July 1, 2012, the trial court may not commit a dangerous,
developmentally disabled person to the State Department of Developmental Services
unless it also finds the person is dangerous due to an acute crisis as defined in
section 4418.7.6 (§§ 6500, subd. (b)(1) & (2), 6509, subd. (a)(2), 7505, subd. (a)(2).)


who have been committed because they are incompetent to stand trial for a crime with
which they are charged. (§§ 6500, subds. (b)(1), (c)(1), 6502, 6509, subds. (a) & (b),
7505, subd. (a)(3).) We focus on the statutory provisions relating to committing
developmentally disabled persons who, like John, have not been charged with a crime or
committed because they are incompetent to stand trial.
       6      Section 4418.7, subdivision (d)(1) defines an “‘acute crises’” as “a situation
in which the consumer meets the criteria of Section 6500 and, as a result of the
consumer’s behavior, all of the following are met: [¶] (A) There is imminent risk for
substantial harm to self or others. [¶] (B) The service and support needs of the
consumer cannot be met in the community, including with supplemental services as set
forth in subparagraph (E) of paragraph (9) of subdivision (a) of Section 4648 and
emergency and crisis intervention services as set forth in paragraph (10) of
subdivision (a) of Section 4648. [¶] (C) Due to serious and potentially life-threatening
conditions, the consumer requires a more restrictive environment for crisis stabilization.”


                                             11
Under the current statutory scheme, the commitment order automatically expires six
months after it was made unless the trial court grants the regional center’s written request
to extend the commitment. The total commitment period, however, may not exceed one
year. (§ 6500, subd. (c)(2).)

D.     The Hop Decision
              In Hop, the California Supreme Court examined the constitutionality of
section 4825 of the Lanterman Act, which, as explained above, allows the indefinite
confinement of a developmentally disabled person in a 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 her representative. (Hop, supra,
29 Cal.3d at pp. 87-88.) Irene Hop was a developmentally disabled adult without a
guardian or conservator. For several years, she lived in a community-based home that
met all of her needs. Hop’s mother, however, transferred her to a developmental center
based solely on Hop’s failure to object to the transfer and the concurrence of the regional
center and developmental center staff. A public defender challenged the transfer by filing
a habeas corpus petition on Hop’s behalf, alleging her disability prevented her from
objecting and therefore the developmental center could not rely on her failure to contest
the transfer. The trial court denied the petition without conducting a hearing. (Id. at
pp. 85-86.) The Supreme Court found the trial court’s refusal to hear the petition
improper. The high court nonetheless denied the petition because it could not conduct
the evidentiary hearing required to determine whether Hop’s transfer was appropriate, but
instructed the public defender to renew Hop’s petition in the trial court. (Id. at
pp. 94-95.)
              The Hop court first examined whether a section 4825 placement in a
developmental center violated a developmentally disabled person’s due process rights
because that provision did not require a judicial hearing on the need for the placement.



                                             12
The court explained that personal liberty is a fundamental right the United States and
California Constitutions guarantee to all individuals, including individuals with
developmental disabilities, and placing a person in a developmental center constituted a
significant restraint on the person’s liberty interests. Accordingly, the Hop court
concluded that confinement in a developmental center required application of criminal
due process standards to test its validity, including a judicial hearing to determine
whether the person’s disabilities warranted the confinement. (Hop, supra, 29 Cal.3d at
pp. 89, 92.)
               The state hospital opposed a judicial hearing because persons placed in a
developmental center under section 4825 are voluntary admittees who have the right to
either prevent their confinement by objecting to it or terminate it by requesting to leave
the center once they are admitted. (Hop, supra, 29 Cal.3d at p. 90.) The Hop court
rejected this argument, pointing out that it only highlighted the need for a judicial hearing
to test the grounds for the placement. Under the statutory scheme, developmentally
disabled persons could voluntarily admit themselves to a developmental center under
section 6000, subdivision (a), only if they were competent to make that decision, but
developmentally disabled persons who were not competent to make that decision were
nonetheless deemed to consent to placement in a developmental center under
section 4825 because they failed to object and had the right to terminate the placement.
(Hop, at pp. 90-91.) Because a person lacking competency to decide whether to seek
admission also lacks competency to consent to placement in a developmental center, the
Hop court concluded a developmentally disabled person placed in a developmental center
under section 4825 “may not be deemed a ‘voluntary’ admittee” and therefore due
process required a judicial hearing to test whether the placement was appropriate. (Hop,
at p. 92.)
               The Hop court also considered whether equal protection rights required a
judicial hearing before a developmentally disabled person could be placed in a

                                             13
developmental center under section 4825. The court explained that no other group of
similarly situated adults in need of protective custody could be lawfully placed in a
developmental center without a knowing and intelligent waiver of rights or a judicial
determination that placement was appropriate, and the developmental center failed to
offer any rational basis for that disparate treatment. (Hop, supra, 29 Cal.3d at p. 92.)
Consequently, the Hop court held that a developmentally disabled person “is entitled to a
judicial hearing on the question of whether, because of developmental disability she is
gravely disabled or a danger to herself or others and whether placement in a state hospital
[under section 4825] is warranted.” (Hop, at p. 93.)
              After comparing a proposed developmental center admittee under
section 4825 to a proposed LPS conservatee and a proposed committee under
section 6500 et seq., the Hop court concluded the proposed developmental center
admittee “is entitled to the same congeries of rights” as the proposed conservatee and
proposed committee. Those rights include the right to a jury trial on demand, application
of the beyond a reasonable doubt standard of proof, and appointed counsel. (Hop, supra,
29 Cal.3d at pp. 93-94.)
              Hop did not create a new nonstatutory means of involuntary judicial
commitment or provide authority for confinement in a state developmental center not
otherwise authorized by statute. (Violet C., supra, 213 Cal.App.3d at p. 94.) Rather, Hop
applied constitutional safeguards to an otherwise constitutionally infirm statutory scheme
and held a person placed in a state developmental center under section 4825 must receive
the same constitutional safeguards as a gravely disabled person confined under the LPS
Act or as a danger to herself or others under section 6500 et seq. (Violet C., at pp. 94-95;
Hop, supra, 29 Cal.3d at pp. 92-94.)
              Although Hop involved a developmentally disabled adult placed in a
developmental center by a parent who was neither her guardian nor conservator,
subsequent cases have found Hop’s analysis and judicial hearing requirement equally

                                             14
applicable to state hospital placements initiated by a developmentally disabled adult’s
conservator. For example, in North Bay Regional Center v. Sherry S. (1989)
207 Cal.App.3d 449 (Sherry S.), the Court of Appeal explained: “The rationale of Hop is
that a developmentally disabled adult who is putatively unable to consent to the
deprivation of liberty entailed in state hospitalization cannot be so deprived without a
hearing. For purposes of this rationale, we see no reason to distinguish between
hospitalizations initiated by parents and those initiated by conservators.”7 (Id. at p. 461;
see also Violet C., supra, 213 Cal.App.3d at p. 96.)

                                             II

                            FACTS AND PROCEDURAL HISTORY

              John is a 57-year-old, developmentally disabled adult with an estimated IQ
of 14. He suffers a wide variety of medical conditions that require around-the-clock care,
including generalized nonintractable epilepsy, lipoma, osteopenia, hypothyroidism,
hypertension, and coronary arteriosclerosis. John cannot communicate verbally, nor can
he tell others when he is experiencing pain or needs medical attention. He is fully
ambulatory, but he cannot self-administer the many daily medications he requires, nor
can he provide for his basic personal needs such as food, shelter, and clothing. For his
own safety, John requires close supervision because he cannot appreciate basic safety
hazards.
              John is the oldest of Raymond and Carol’s five children. In October 1965,
Raymond and Carol voluntarily admitted John to Fairview because they could not safely
care for him at their home. John has continued to live at Fairview for the past 47 years.

       7       These cases refer to conservators appointed under the Probate Code. (See,
e.g., Violet C., supra, 213 Cal.App.3d at p. 96.) They do not apply to conservators
appointed under the LPS Act because, as explained above, LPS conservators have the
authority to place gravely disabled conservatees in a developmental center, but a Probate
Code conservator lacks that power. (Karriker, supra, 149 Cal.App.4th at p. 780.)


                                             15
Throughout John’s stay at Fairview, Raymond, Carol, and their other children have
remained active in his life. Raymond and Carol visit him regularly, participate in events
and activities at Fairview with him, bring him to their home for visits every few weeks,
and include him in all family events and gatherings.
              In 1996, the trial court appointed Raymond, Carol, and John’s sister,
Andrea, as limited conservators for John under the Probate Code.8 The court granted
Petitioners the power “[t]o fix the residence or specific dwelling of [John] to include
request for placement at a State Developmental Center,” give or withhold medical
consent, and contract on John’s behalf. (Italics added.) The court has investigated and
reviewed this limited conservatorship every two years, but has not found any grounds to
modify or terminate it.
              Since 1993 the trial court has annually reviewed John’s placement at
Fairview under Hop and section 4825. The Harbor Regional Center initiated each of
these annual “Hop reviews” by requesting court approval for John to remain at Fairview.
Each time the court conducted a Hop review, it appointed the Public Defender to serve as
John’s attorney and ultimately approved John’s continued Fairview placement subject to
“further judicial review within one (1) year.”
              The Harbor Regional Center filed its most recent “Hop petition” in
September 2010, explaining “there is no known suitable, legally available placement [for
John] that is less restrictive than the proposed state developmental center placement.” In
response, the court again appointed the Public Defender to serve as John’s attorney and
temporarily approved his continued placement at Fairview pending a hearing on the Hop
petition.




        8     Raymond, Carol, and Andrea were not appointed as LPS conservators for
John.


                                             16
               In December 2011, while the most recent Hop petition remained pending,
the Public Defender filed a habeas corpus petition on John’s behalf under section 4800,
which provides every adult admitted to a state developmental center with the right to
petition for a hearing on whether the committee should be released. The petition alleged
Fairview unlawfully restrained John’s liberty because it is not the least restrictive
placement for him. The petition sought John’s release from Fairview, but provided no
information explaining why Fairview was not the least restrictive placement or where
John should be placed. Petitioners opposed the petition on several grounds, including
(1) the petition failed to allege any facts to support its request for relief; (2) the Public
Defender lacked standing to file the petition without approval from John’s conservators;
(3) Fairview is the least restrictive placement for John; and (4) John’s placement at
Fairview should be reviewed through the Hop review process, not a habeas corpus
petition.
               In April 2012, the trial court conducted a hearing on Petitioners’ challenges
to the Public Defender’s habeas corpus petition. At the hearing, the Harbor Regional
Center informed the court it had not been “actively” pursuing an alternative placement
for John, but it “believed” it could find a “suitable” placement for him if the Court
ordered it to do so. The Harbor Regional Center, however, did not identify any facility
other than Fairview that could properly care for John.
               The trial court rejected all of Petitioners’ challenges and scheduled an
evidentiary hearing on the habeas corpus petition to be followed immediately by a Hop
hearing if it remained necessary. Petitioners promptly filed the current petition for writ
of mandate or prohibition in this court, seeking (1) an immediate stay of trial court
proceedings that would determine John’s placement, and (2) a writ directing the trial
court to dismiss the Public Defender’s section 4800 habeas corpus petition. We ordered
the Public Defender and Harbor Regional Center to show cause why mandate should not
issue, and stayed all trial court proceedings on the habeas corpus and Hop petitions.

                                               17
                                              III

                                         DISCUSSION

A.     The Public Defender May Not Pursue the Habeas Corpus Petition on John’s
       Behalf
              The Public Defender filed the habeas corpus petition on John’s behalf
under section 4800, which provides: “Every adult who is or has been admitted or
committed to a . . . developmental center . . . as a developmentally disabled patient shall
have a right to a hearing by writ of habeas corpus for his or her release from the . . .
developmental center . . . after he or she or any person acting on his or her behalf makes a
request for release to any member of the staff of the . . . developmental center . . . or to
any employee of a regional center.” (§ 4800, subd. (a).) The Public Defender contends it
properly filed the habeas corpus petition as a “person acting on [John’s] behalf.” We
disagree because the Public Defender failed to establish an appropriate basis for pursuing
the petition and failed to follow section 4800’s statutory procedures.
              In Hop, the Supreme Court addressed section 4800 and a public defender’s
standing to bring a habeas corpus petition on behalf of a developmentally disabled person
who is unable to object to a developmental center placement. The Hop court
acknowledged section 4800 authorizes a habeas corpus petition by anyone acting on a
developmentally disabled person’s behalf, but the court also pointed out its habeas corpus
jurisprudence allows someone other than the detained person to bring a habeas corpus
petition “‘[o]nly in very exceptional circumstances,’” and the petition must “‘“set forth
some reason or explanation . . . showing why the detained person [did] not sign [the
petition] . . . .”’ [Citation.]” (Hop, supra, 29 Cal.3d at pp. 86-87, original italics.)
Accordingly, although section 4800 authorizes a habeas corpus hearing, a person other
than the developmentally disabled person must establish exceptional circumstances to
justify pursuing a habeas corpus petition on the developmentally disabled person’s behalf
because “‘“[i]t was not intended that the writ of habeas corpus should be availed of, as a

                                              18
matter of course, by intruders or uninvited meddlers . . . . [Citation.] . . . .”’ [Citation.]”
(Hop, at p. 87.)
              The Hop court found exceptional circumstances supported the public
defender’s section 4800 habeas corpus petition. Those circumstances described in the
petition alleged (1) Hop’s disability deprived her of the “‘ability to protest her transfer to
a more restrictive placement’”; (2) Hop’s mother initiated the developmental center
placement with the concurrence of the regional center and developmental center staff,
and therefore none of them reasonably could be expected to file a habeas corpus petition
challenging their own actions; and (3) Hop appeared incompetent to initiate or file a
habeas corpus proceeding on her own behalf. (Hop, supra, 29 Cal.3d at p. 87.) In
essence, no means existed for Hop to challenge her transfer to the state hospital other
than the public defender’s habeas corpus petition filed on her behalf.
              The Supreme Court also has long recognized “habeas corpus is an
extraordinary remedy that ‘was not created for the purpose of defeating or embarrassing
justice, but to promote it’ [citation.] . . . .” (In re Robbins (1998) 18 Cal.4th 770,
777-778.) Indeed, habeas corpus is not a proper remedy where other adequate remedies
exist, such as an appeal or other available procedures for challenging the confinement.
(Gandolfo, supra, 36 Cal.3d at pp. 898-899.) In Gandolfo, the Supreme Court held a
habeas corpus petition was not an appropriate means to challenge an LPS conservatee’s
confinement in a developmental center because the LPS Act provided ample means for
the conservatee to challenge both the conservatorship and his developmental center
confinement, and the habeas corpus petition did not allege any extraordinary
circumstances rendering those procedures inadequate. (Id. at pp. 897-900.)
              Here, the record shows there are no exceptional circumstances that justify
the Public Defender filing the habeas corpus petition on John’s behalf or show the
remedies otherwise available to address John’s Fairview placement are inadequate.
Unlike the situation in Hop, we are not concerned with John’s initial placement at

                                              19
Fairview for an indefinite period of time without a judicial hearing. John has lived at
Fairview for more than 47 years. Since at least 1993, John has been placed at Fairview
under a series of one-year placements subject to annual judicial reviews. The most recent
of these Hop reviews was pending and set for hearing when the Public Defender filed the
habeas corpus petition. As explained above, the Hop review process assures John not
only representation by counsel but also a jury trial and application of the beyond
reasonable doubt standard of proof on the scope of his disabilities and whether his
disabilities warrant his developmental center placement. The Public Defender provides
no explanation why the pending Hop review is an inadequate means for evaluating John’s
Fairview placement.
              To the contrary, the Public Defender suggested a habeas corpus petition
under section 4800 provides a means to circumvent the Hop review process. The Public
Defender argued in the trial court that section 4800 authorized it to file the habeas corpus
petition and allow the trial court to decide whether John’s Fairview placement remained
appropriate, rather than go through the Hop review process and present that issue to a
jury. This argument turns the function and purpose of habeas corpus on its head. As
explained above, habeas corpus is appropriate only when there are no other available and
adequate remedies; it may not be used to avoid otherwise available and adequate
remedies.9 (Gandolfo, supra, 36 Cal.3d at pp. 898-899.)
              Moreover, unlike Hop, John has court-appointed conservators who are
authorized to act on his behalf in selecting his residence. (See Michael K., supra,
185 Cal.App.4th at p. 1128, fn. 14 [exceptional circumstances did not exist to allow

       9       We do not suggest that a developmentally disabled person or anyone acting
on his or her behalf must always await the next Hop review to challenge the person’s
placement in a state developmental center or other facility. Rather, we simply conclude a
section 4800 habeas corpus petition may not be used when there are other adequate and
available remedies for challenging the placement. Here, the Hop review process was
adequate because it was already underway and a hearing was scheduled.


                                             20
public defender to pursue section 4800 habeas corpus petition because developmentally
disabled person had court-appointed conservators who were competent and authorized to
decide whether the person should remain in a state developmental center].) The Public
Defender and Harbor Regional Center contend there is evidence that John’s conservators
are preventing the Harbor Regional Center from determining whether there is a less
restrictive placement that would meet John’s needs, and therefore we may not rely on the
conservators’ involvement to conclude the Public Defender lacks authority to pursue the
habeas corpus petition. We disagree.
               Neither the Public Defender nor Harbor Regional Center cites any evidence
in the record showing John’s conservators prevented the regional center from fully
assessing John and his needs or otherwise identifying any less restrictive placements.
The Harbor Regional Center argues it cannot identify other possible placements for John
without his conservators’ cooperation because it may not disclose confidential
information about John to potential service providers without their consent. (See
generally § 4514.) But section 4514 includes numerous exceptions to the consent
requirement, including disclosure to “qualified professional persons . . . in the provision
of intake, assessment, and services or appropriate referrals.” (§ 4514, subd. (a).) Consent
is required only when disclosure is made to “a program not vendored by a regional center
or developmental center.” (Ibid.) The Harbor Regional Center cites no evidence
showing John’s conservators can or have thwarted the placement process through lack of
cooperation.
               We do not suggest that a Probate Code conservator’s involvement in a
developmentally disabled person’s placement bars a public defender from pursuing a
habeas corpus petition on the person’s behalf whenever the conservator objects. Rather,
we merely conclude the conservator’s involvement is a factor the court may consider in
determining whether exceptional circumstances justified the public defender’s
section 4800 habeas corpus petition. (See Michael K., supra, 185 Cal.App.4th at p. 1123,

                                             21
fn. 8 [public defender may act contrary to conservator’s instructions in extraordinary
circumstances].) For example, if there was evidence showing the conservator failed to
act in the developmentally disabled person’s best interests or prevented a proper
assessment or identification of possible community-based services, the court could
consider those circumstances in deciding whether exceptional circumstances exist. Here,
the Public Defender failed to show either extraordinary circumstances or that other
remedies were inadequate.
              The Public Defender also may not pursue the current habeas corpus petition
because he failed to follow the procedures mandated for a section 4800 habeas corpus
petition. Section 4800, subdivision (a), grants every adult admitted or confined in a state
developmental center or other identified facility the right to a habeas corpus hearing after
the adult or someone acting on his or her behalf makes a request for release to a facility
staff member or a regional center employee. Upon receiving the request, the staff
member or regional center employee must promptly (1) provide the person making the
request a written request for release form for the person to sign,10 and (2) deliver a copy
of the signed request to the director or administrator of the facility from which release is
sought. (§ 4800, subd. (b).) The director or administrator must then notify the trial court
of the request and transmit a copy to the adult’s parent or conservator. (Ibid.) The adult
or person acting on his or her behalf must then prepare and file a habeas corpus petition
with the court, and counsel must be appointed to assist the adult if he does not already
have counsel. (§ 4801, subds. (a) & (b).) Here, the Public Defender failed to request
John’s release to any Fairview staff member or regional center employee and no written
request was submitted to anyone at Fairview or the regional center. Instead, the Public
Defender bypassed the statute’s preliminary steps and simply filed the habeas corpus


       10     The written request for release must be substantially in the form described
in section 4800, subdivision (d).


                                             22
petition with the trial court. The Public Defender provides no authority or excuse
justifying its failure to follow the statutory procedures. (See Sherry S., supra,
207 Cal.App.3d at p. 461 [statutory procedures regarding developmental center
placements under section 4825 must be followed].)
              The Public Defender argues section 4800 and Hop authorize it to file a
habeas corpus petition any time a developmentally disabled person placed in a state
developmental center or other facility is incapable of filing a petition on her own behalf.
The Public Defender reads these authorities too broadly. As explained above, Hop
authorized a public defender to pursue a habeas corpus petition on Hop’s behalf because
there was no one else to do so and no other means to obtain an independent review of
Hop’s state hospital placement. At the time, the right to a judicial hearing or any other
remedy did not exist. Hop nonetheless requires “‘very exceptional circumstances’” for a
public defender or anyone other than the detained person to file a section 4800 habeas
corpus petition, and the writ petition must allege facts establishing those circumstances.
(Hop, supra, 29 Cal.3d at pp. 86-87, original italics.) A public defender simply may not
pursue a section 4800 habeas corpus petition as a matter of course.
              The Public Defender contends In re Borgogna (1981) 121 Cal.App.3d 937,
supports its interpretation of section 4800 and Hop. Borgogna declared a public defender
has standing to pursue a habeas corpus petition on a developmentally disabled person’s
behalf if the person is not competent to do so. (Borgogna, at p. 945.) This statement,
however, is dicta. (Ibid.) In Borgogna, the public defender joined with the regional
center in bringing an earlier habeas corpus petition, but the trial court denied the petition
because it was not filed by the developmentally disabled person, who was competent and
opposed the petition. The issue in Borgogna concerned a later petition the regional
center filed on its own in the Court of Appeal. (Borgogna, at p. 940.) The Borgogna
court found the regional center could pursue the petition because the statutory scheme
vested it with authority to decide the disabled person’s placement and therefore the center

                                             23
could defend its own placement decision. The Borgogna court did not analyze or
consider the public defender’s authority to pursue a habeas corpus petition nor did it
discuss Hop’s very exceptional circumstances requirement. (Id. at p. 946.) An opinion is
not authority for issues it did not consider or decide. (People v. Knoller (2007)
41 Cal.4th 139, 154-155; People v. Dunbar (2012) 209 Cal.App.4th 114, 118.) We
therefore find Borgogna inapplicable.
              We note the trial court appointed the Public Defender to serve as John’s
counsel for the pending Hop review. Assuming that appointment would otherwise
authorize the Public Defender to file a habeas corpus petition on John’s behalf, it does not
authorize the Public Defender to pursue the current petition. As explained above, the
record does not show the pending Hop review is an inadequate remedy for testing the
validity of John’s placement at Fairview and the Public Defender failed to follow the
appropriate procedures for pursuing a habeas corpus petition under section 4800.
Accordingly, the Public Defender may not pursue the current habeas corpus petition on
John’s behalf.

B.     The Trial Court Retains Jurisdiction to Review John’s Fairview Placement
              Petitioners contend the trial court lacks jurisdiction to conduct Hop
hearings to review John’s ongoing Fairview placement because the Hop decision did not
create ongoing jurisdiction for the trial court to hear challenges to placement decisions or
otherwise review existing placements. According to Petitioners, the Lanterman Act’s fair
hearing process is the exclusive means for deciding challenges concerning John’s
Fairview placement. This argument fails because it ignores the terms of the court orders
approving John’s placement at Fairview and the limited purpose of periodic Hop
reviews.11


       11    Although Petitioners argue the trial court lacks authority to conduct
periodic Hop reviews regarding John’s Fairview placement, they do not seek any relief

                                             24
              Hop held a developmentally disabled person’s due process and equal
protection rights prohibit the person from being confined in a state developmental center
under section 4825 without an initial judicial determination regarding the person’s
disability and whether the placement was warranted. (Hop, supra, 29 Cal.3d at
pp. 92-93.) The fact John was placed in Fairview several years before the Supreme Court
announced its Hop decision in no way affects his right to have his Fairview placement
reviewed under the standards Hop established. As the Hop court pointed out, its
requirement of a hearing and other procedural rights it established to make a
developmental center placement under section 4825 constitutional applied not only to
Hop and all developmentally disabled persons placed in a developmental center after the
Hop decision, but also to all persons who resided in a developmental center under a
section 4825 placement when the Supreme Court announced its decision. (Hop, at p. 94
[“Our holding does not require the immediate release either of Hop or of those presently
held in state hospitals under the authority of section 4825”].)
              Here, the initial judicial determination regarding John’s Fairview placement
occurred in 1993. At that time, the trial court approved John’s placement subject to
“further judicial review within one (1) year.” Since then, John has remained at Fairview
under a series of court orders approving his placement subject to annual judicial reviews.
Every court order approving the placement reserved jurisdiction for the court to do so.
Indeed, each time John’s Fairview placement came up for review, it was essentially a
new placement requiring judicial review under Hop regardless of whether the trial court
had continuing jurisdiction because the authorization for the previous placement had
expired. No one disputes the trial court’s authority to approve John’s Fairview placement




on the pending Hop petition nor do they ask us to prevent the trial court from reviewing
John’s Fairview placement.


                                             25
for a limited time subject to further judicial review, and therefore this challenge to the
trial court’s jurisdiction to review the placement fails.
              We nonetheless consider whether Hop itself provides the trial court with
authority to periodically review John’s placement to determine whether his disabilities
continue to justify placement in a developmental center. Although Hop addressed only a
developmentally disabled person’s initial placement, we find its rationale for requiring
judicial review equally applicable to the committee’s ongoing placement. As explained
above, Hop found a developmentally disabled person’s initial placement without a
judicial hearing violated the person’s due process and equal protection rights because it
significantly impairs the person’s fundamental right to personal liberty, and no other class
of similarly situated adults may be placed in a developmental center without a judicial
determination that the placement is appropriate. (Hop, supra, 29 Cal.3d at pp. 89-92.)
              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. (See, e.g., §§ 5150, 5250, 5260, 5270.15, 5300, 5304, subd. (b) [limiting
LPS confinements to 72 hours, 14 days, 30 days, or 180 days depending on person’s
condition]; §§ 5256, 5256.1, 5262, 5270.15, 5275, 5276, 5301, 5302, 5303 [requiring a
court or certified hearing officer to review all LPS confinements except initial 72-hour
confinement and all extensions or recommitments]; §§ 6500, subd. (c)(2), 6502, 6503



                                              26
[limiting commitments to six months and requiring judicial hearing for initial
commitment and any extension or recommitment].)
              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 placement, John 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. We see no basis to justify the
lifetime placement of a nondangerous developmentally disabled person under
section 4825 based solely on an initial judicial review. Petitioners do not adequately
explain why the Legislature under the LPS Act and section 6500 et seq. limited the
commitment time of a dangerous developmentally disabled person or a gravely disabled
person placed in a developmental center and also guaranteed those individuals further
judicial review, but omitted those protections for section 4825 placements. That result is
simply inconsistent with the constitutional principles articulated in Hop.12
              Petitioners contend John and other developmentally disabled persons
placed in a developmental center are not similarly situated to other developmental center
residents because section 4825 admittees voluntarily agree to the placement. According
to Petitioners, persons placed under section 4825 are free to leave the developmental
center any time they or their legal representatives choose, unlike those persons placed
under the LPS Act, section 6500 et seq., or other statutory provisions. Hop, however,
rejected this identical argument. As explained above, Hop found developmentally
disabled persons are incapable of objecting to their placement because of their disability

       12      The Public Defender requests that we judicially notice a document
published by the Office of the Legislative Analyst in November 1988 entitled, “Judicial
Reviews of State Developmental Center Placements; Implementation of the In re Hop
Decision.” We deny the request because a 25-year-old document on how various
counties implemented Hop is not relevant to our current inquiry. (Mangini, supra,
7 Cal.4th at p. 1063.)


                                            27
and therefore are not voluntary admittees. A person may not be considered a voluntary
admittee under section 4825 unless he or she is competent to request or consent to the
placement. (Hop, supra, 29 Cal.3d at pp. 90-92.) Appointing a conservator for the
developmentally disabled person does not change that conclusion; the placement remains
involuntary and a judicial hearing is required. (Sherry S., supra, 207 Cal.App.3d at
p. 461; Violet C., supra, 213 Cal.App.3d at p. 96.) As Hop explained, the well
intentioned efforts of a person’s representative to act in the person’s best interests
“‘cannot . . . detract in any way from [the person’s] right to procedures that will protect
him from arbitrary curtailment of his liberty interest . . . .’ [Citations.]” (Hop, at p. 93;
see also 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. [Citation.] No matter how well intentioned
parents and conservators may be, they cannot exert their influence to curtail or deny the
due process rights of persons with developmental disabilities”].)
              We acknowledge Michael K. and Whitley concluded Hop did not provide
“ongoing jurisdiction in the superior court to hear challenges to placement decisions or
simply review existing placements,” explaining that “‘[t]he due process concerns for
retention in a development[al] center are not the same due process concerns that are
present when a developmentally disabled individual is first involuntarily committed.’”
(Michael K., supra, 185 Cal.App.4th at pp. 1127-1129; Whitley, supra, 155 Cal.App.4th
at pp. 1465-1466.) As authority for that proposition, Michael K. and Whitley cite Cramer
v. Gillermina R. (1981) 125 Cal.App.3d 380, 393 (Cramer), without any analysis of that
decision. Upon examination, Cramer does not support their conclusion.
              Cramer involved petitions to recommit several individuals to a state
developmental center because the original orders committing them under section 6500
et seq. were expiring. Following ex parte hearings on each petition, the trial court

                                              28
temporarily extended the commitment orders pending full recommitment hearings. The
committees challenged these temporary extensions, arguing they were constitutionally
entitled to adversarial probable cause hearings before they could be temporarily held
beyond their original commitments. (Cramer, supra, 125 Cal.App.3d at pp. 384-385,
392.) The committees cited Hop to support their position, but Cramer found Hop
inapplicable because it did not address due process concerns arising from a
recommitment under section 6500 et seq. (Cramer, at p. 393.)
              Cramer is inapplicable here for the same reason—it addresses a different
type of confinement based on different authority. At the time, section 6500 et seq.
authorized a one-year judicial commitment for developmentally disabled persons who
were a danger to themselves or others. After one year, the commitment order
automatically expired and the committee would be freed unless the district attorney
petitioned for a recommitment order. Without periodic Hop reviews a developmentally
disabled person could be placed in a developmental center under section 4825 for the
remainder of her life based only on an initial judicial review. Consequently, Cramer does
not support the conclusion that the due process concerns regarding retention in a state
developmental center under section 4825 are different than the due process concerns
regarding the initial section 4825 placement.
              Moreover, in Cramer, the individuals received judicial hearings before the
court made the temporary hold orders and the individuals were entitled to appear at those
hearings and oppose the orders. Those hearings were not full adversarial hearings with
the right of cross-examination and other formal hearing rights, but they were judicial
hearings addressing the suitability of the temporary hold orders. (Cramer, supra,
125 Cal.App.3d at pp. 392-393.) The Cramer court also emphasized that the challenged
orders were merely temporary pending a full judicial hearing where the committee would
receive all formal hearing rights: “Undoubtedly, our holding would be different if there
were no available subsequent judicial hearing to test the recommitment.” (Id. at p. 392.)

                                            29
Accordingly, Cramer held due process requires a judicial hearing before a recommitment
and therefore does not support the conclusion the trial court has no ongoing jurisdiction
to review a section 4825 placement after the court initially approves the placement.
              We note two additional reasons why Michael K. and Whitley do not deprive
the trial court of jurisdiction to conduct periodic Hop reviews. First, neither decision
addressed Hop’s equal protection rationale for requiring ongoing jurisdiction to review a
developmental center placement. Second, neither decision involved a periodic Hop
review regarding an ongoing developmental center placement. Instead, both Michael K.
and Whitley involved attempts to circumvent the Lanterman Act’s administrative fair
hearing procedures by arguing Hop created ongoing jurisdiction for courts to hear
challenges to specific placement decisions or otherwise review all aspects of any
Lanterman Act placement. (Michael K., supra, 185 Cal.App.4th at pp. 1116-1117, 1127;
Whitley, supra, 155 Cal.App.4th at p. 1465.)
              Our reading of Hop is not inconsistent with Michael K.’s and Whitley’s
conclusion that Hop does not provide the trial court with ongoing jurisdiction to hear
challenges to specific placement decisions and review all aspects of existing placements.
We read Hop simply to confer jurisdiction on the trial court to (1) conduct a hearing
regarding the basis for initially placing a developmentally disabled person in a
developmental center, and (2) periodically review whether the person’s disabilities
continue to support the significant restrictions the placement imposes on the committee’s
liberty interests. This jurisdiction to periodically review the basis for a developmental
center placement is not jurisdiction to monitor the ongoing placement or make decisions
regarding the details of the services the developmentally disabled person receives.13

       13     Neither the parties nor the amici curiae briefed what constitutes the
appropriate interval between Hop reviews and that issue is not presented here because
each order approving John’s Fairview placement specifically required the next review to
occur within one year. Accordingly, we do not address the issue. We also note the recent
amendments to the Welfare and Institutions Code will reduce and eventually eliminate

                                             30
              Indeed, we emphasize Hop did not create a new procedure for placing a
developmentally disabled person in a developmental center, nor did it create a
nonstatutory procedure for challenging decisions regarding a developmentally disabled
person’s placement or other specific services. (Violet C., supra, 213 Cal.App.3d at
p. 94.) Instead, Hop imposed limits on an existing statutory procedure for placing a
developmentally disabled person in a developmental center to ensure the restraint
imposed on the disabled person’s liberty interests did not violate the person’s due process
and equal protection rights. (Sherry S., supra, 207 Cal.App.4th at p. 460, fn. 11;
Violet C., supra, 213 Cal.App.3d at pp. 94-95.) Accordingly, a Hop review only
examines the level of confinement by asking whether the developmentally disabled
person’s disabilities warrant placement in the most restrictive type of facility available
under the Lanterman Act. Hop does not apply to placement in a developmental center
under any statutory provision other than section 4825, nor does it apply to placement in
any facility other than a developmental center.14

the need for Hop reviews for two reasons. First, a developmentally disabled person may
no longer be placed in a developmental center under section 4825 and that is the only
type of placement to which Hop applies. (§ 7505.) Second, the recent amendments
require regional centers to conduct regular, comprehensive reviews of developmentally
disabled persons who resided in developmental centers before the amendments to identify
community-based services that could meet the developmentally disabled person’s needs.
(§ 4418.25, subd. (c)(2).)
       14       The Public Defender argues the recent amendments to the Welfare and
Institutions Code codified Hop hearings and therefore it is irrelevant whether Hop itself
provided the superior court with ongoing jurisdiction to review state developmental
center placements. The Public Defender relies on section 6500, subdivision (b)(4), which
states, “In the event subsequent petitions are filed with respect to a resident of a state
developmental center or a state-operated community facility committed prior to July 1,
2012, the procedures followed and criteria for recommitment shall be the same as with
the initial petition for commitment.” The Public Defender misreads this statute.

              Section 6500 is part of the statutory scheme for committing
developmentally disabled persons who are dangerous to themselves or others. It is not
part of the Lanterman Act and does not address a developmental center placement under

                                             31
              The Lanterman Act’s administrative fair hearing procedures allow a
developmentally disabled person to challenge any specific decision a regional center or
developmental center makes to reduce, terminate, change, or deny that person services.
(§§ 4706, 4710.) To challenge a decision the developmentally disabled person must
invoke the fair hearing procedures within 30 days of receiving notice of the challenged
decision. (§4710.5, subd. (a); Whitley, supra, 155 Cal.App.4th at p. 1460.) The fair
hearing procedure’s final outcome may be judicially reviewed through a writ of
administrative mandamus. (See Michael K., supra, 185 Cal.App.4th at p. 1126.)
              In Whitley, the Court of Appeal held the fair hearing procedures provide the
exclusive remedy for a developmentally disabled person’s legal representative to object
to a community placement decision.15 (Whitley, supra, 155 Cal.App.4th at
pp. 1462-1463, 1465.) The Whitley court reached that conclusion based on the
exhaustion of administrative remedies doctrine. (Id. at pp. 1463-1464.) That doctrine
provides that when the Legislature creates an administrative tribunal to adjudicate an
issue before presenting it to the trial court, the party must first pursue its remedies with
that tribunal because the issue falls within the administrative tribunal’s special
jurisdiction. Consequently, the courts may only “‘review’” the tribunal’s final
determination. (Id. at p. 1464, original italics.)


section 4825, which is the only developmental center placement to which Hop applies.
Moreover, following the recent amendments, developmentally disabled persons no longer
may be placed in a developmental center under section 4825 (see § 7505), and therefore
there are no statutory procedures and criteria for initially placing a developmentally
disabled person in a developmental center under section 4825, in contrast to a placement
under section 6500 et seq.
       15     Whitley’s holding, however, must be qualified because, as Hop explained,
section 4800 allows a developmentally disabled person or someone acting on his or her
behalf to challenge the person’s placement in exceptional circumstances and when the
fair hearing procedure’s remedies are inadequate. (Hop, supra, 29 Cal.3d at pp. 86-87;
see also Gandolfo, supra, 36 Cal.3d at p. 898-900.) Whitley did not address section 4800.


                                              32
              Contrary to Petitioners’ contention, the administrative fair hearing
procedures do not deprive the trial court of jurisdiction to conduct periodic Hop reviews
because the reviews serve a different purpose and are not within an administrative
tribunal’s special jurisdiction. 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.
              Moreover, the administrative procedures do not provide the same due
process and equal protection safeguards as periodic Hop reviews. To protect a
developmentally disabled person’s personal liberty interests, Hop requires periodic
independent reviews to ensure the person’s disabilities continue to warrant developmental
center placement even if there has been no change in the person’s placement or other
services since the last review. Hop requires these reviews to prevent the developmentally
disabled person’s representative, the regional center, and the developmental center from
maintaining the placement indefinitely without any independent review. The
administrative hearing procedures, however, provide for an independent administrative
review only if a developmentally disabled person or her representative requests a hearing
within 30 days after receiving notice of the regional center’s or developmental center’s
decision to change the person’s placement or other services. Even after the fair hearing
procedures have been invoked, the developmentally disabled person’s representative, the
regional center, and developmental center may avoid a hearing by invoking the informal

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meeting and voluntary mediation provisions of the administrative hearing procedures to
reach an agreement to maintain the developmental center placement. That is precisely
the situation Hop sought to avoid by imposing its judicial hearing requirement. Here, the
fair hearing procedures did not provide John the due process and equal protection
safeguards Hop requires because neither the regional center nor the developmental center
changed John’s placement or any of his other services, and therefore neither John nor
Petitioners had the right to request a hearing under the administrative fair hearing
procedures.16
                Accordingly, the trial court may proceed with the pending Hop review
hearing to determine whether John’s disabilities continue to justify his placement in a
developmental center. If the trial court determines John’s Fairview placement is no
longer warranted because a less restrictive facility can meet his needs, Petitioners may
request John’s transfer to a specific facility of their choosing and urge the adoption of the
services they believe are necessary. The administrative fair hearing procedures should be
used to resolve any challenges Petitioners have to the facility the regional center
ultimately may select for John and the services to be provided at that facility. The trial
court should not resolve any such disputes in the first instance during the Hop review.
The Hop review should be limited to deciding whether appropriate efforts have been
made to identify a less restrictive facility that satisfies all of John’s needs and whether at
least one such facility exists. Assuming the trial court concludes John should be
transferred, he should not be transferred until all issues regarding his new placement are
resolved. (See Hop, supra, 29 Cal.3d at p. 94 [“‘A precipitous release of these [adults] to
families and community facilities unprepared to care for them could be both disruptive to

       16     Because neither the Harbor Regional Center nor Fairview made any
decision that would have allowed John or Petitioners to invoke the administrative fair
hearing procedures, we need not decide whether these administrative procedures would
satisfy Hop if there was an administrative hearing before an independent hearing officer.


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the treatment program and potentially harmful to the [patient] and the community’”];
see also Sherry S., supra, 207 Cal.App.3d at p. 463.)
              Our decision solely addresses the procedures relating to the Hop review of
John’s Fairview placement. We express no opinion on the appropriate placement for
John. We also do not decide what role the Public Defender may play in the Hop review
of John’s placement, nor do we decide whether the Public Defender has adequately
represented John’s interests. Our decision in Michelle K. v. Superior Court (Nov. 8,
2013, G048018) ___ Cal.App.4th ___ <http:www.courtinfo.ca.gov/opinions>, however,
addresses those issues.

                                              IV
                                         DISPOSITION

              The petition is granted. Let a writ of mandate issue directing the trial court
to (1) enter an order dismissing the habeas corpus petition, and (2) conduct a hearing on
the Hop petition. Our order staying all trial court proceedings on the habeas corpus and
Hop petitions is hereby dissolved. In the interest of justice, all parties shall bear their
own costs on this writ proceeding.



                                                   ARONSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



FYBEL, J.




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