Michelle K. v. Superior Court

Filed 11/8/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MICHELLE K., an Incompetent Person,
etc.
Petitioner,
G048018
v.
(Super. Ct. Nos. A169658 &
THE SUPERIOR COURT OF ORANGE 30-2012-00608957)
COUNTY,
OPINION
Respondent;
HARBOR DEVELOPMENTAL
DISABILITIES FOUNDATION 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 in part and denied in part; writ issued.
Locke Lord, Jon L. Rewinski and Matthew B. Nazareth for Petitioner.
No appearance for Respondent.
Frank Ospino, Public Defender, Mark S. Brown, Assistant Public Defender,
and Kira Rubin, Deputy Public Defender, for Real Party in Interest Orange County Public
Defender‟s Office.
Enright & Ocheltree, Judith A. Enright and Julie A. Ocheltree for Real
Party in Interest Harbor Developmental Disabilities Foundation, doing business as
Harbor Regional Center.
* * *
Petitioner Michelle K., an incompetent person, by George K.,1 her
conservator, seeks writ relief to prevent the trial court from conducting an evidentiary
hearing on (1) a habeas corpus petition the Orange County Public Defender (Public
Defender) filed on Michelle‟s behalf to obtain her release from Fairview Developmental
Center (Fairview), and (2) a periodic judicial review on whether Michelle‟s Fairview
placement remains necessary. Michelle is a 51-year-old, developmentally disabled adult
who has resided at Fairview for more than 40 years due to a series of placements made
under the Lanterman Developmental Disabilities Services Act (Lanterman Act; Welf. &
Inst. Code, § 4500 et seq.).2 The Public Defender brought the habeas corpus petition
under section 4800 because it contends less restrictive facilities can provide similar care
for Michelle and the Lanterman Act mandates placement of developmentally disabled
persons in the least restrictive environment capable of meeting their needs. George
contends the Public Defender lacks authority to pursue the habeas corpus petition because
he, as Michelle‟s legal representative, has determined Fairview is the best placement for
Michelle.
1 We abbreviate the last name of Michelle and her family members, and will
use only their first names, to protect Michelle‟s privacy. (See Welf. & Inst. Code,
§ 4502, 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.
2
We agree the Public Defender lacks authority to pursue the habeas corpus
petition on Michelle‟s behalf. Supreme Court precedent establishes the Public Defender
may not pursue a section 4800 habeas corpus petition on a developmentally disabled
person‟s behalf without establishing “„very exceptional circumstances‟” (In re Hop
(1981) 29 Cal.3d 82, 86-87 (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 Michelle‟s Fairview placement has been
subject to periodic judicial review for nearly 20 years, a hearing on the next periodic
review already was scheduled when the Public Defender filed the habeas corpus petition,
and the Public Defender failed to show George is not acting in Michelle‟s best interest.
Although we agree with George the Public Defender may not pursue its
habeas corpus petition, we do not agree with his contention the Lanterman Act‟s
administrative fair hearing procedures deprive the trial court of jurisdiction to
periodically review Michelle‟s placement. The fair hearing procedures provide the
exclusive means for challenging a specific decision to change Michelle‟s placement or
the other services she receives, but those procedures do not prevent the trial court from
periodically reviewing whether her developmental center placement is still warranted. In
Hop, the Supreme Court held that a developmentally disabled person could not be placed
in a developmental center under the Lanterman Act without a judicial hearing on 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.
3
We also conclude the trial court properly refused to allow George to replace
the Public Defender as Michelle‟s appointed counsel with a private attorney he retained
to represent her. As explained below, Michelle has a right to independent appointed
counsel on the periodic Hop reviews because she has a significant liberty interest in her
placement. Allowing George to both seek Michelle‟s continued placement at Fairview
and select Michelle‟s counsel for the judicial review regarding that placement would
render Michelle‟s right to independent counsel illusory. George may ask the trial court to
appoint new counsel for Michelle if he believes the Public Defender is not providing
effective representation and the trial court must give George a full opportunity to state the
reasons for that request.
Accordingly, we issue a writ of mandate directing the trial court to (1) enter
an order dismissing the habeas corpus petition the Public Defender filed on Michelle‟s
behalf; (2) proceed with the Hop review hearing on Michelle‟s Fairview placement; and
(3) hear and decide any request by George to appoint new counsel for Michelle.
I
LEGAL BACKGROUND
To explain the roles performed by the various persons and entities involved
in Michelle‟s Fairview placement, and to put the parties‟ contentions in the proper
context, we begin by providing an overview of the principal statutory scheme at issue, the
Lanterman Act, and two related statutory schemes, the Lanterman-Petris-Short Act
(LPS Act; § 5000 et seq.) and section 6500 et seq. These acts authorize confinement of
developmentally disabled or mentally ill persons in a state developmental center (also
referred to as a state hospital in some statutes) when certain conditions are satisfied. We
also summarize the Supreme Court‟s Hop decision and the limits it places on a
developmentally disabled person‟s commitment to a developmental center under the
Lanterman Act.
4
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
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
5
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.
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
6
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
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. (See In re Michael K. (2010)
185 Cal.App.4th 1112, 1126 (Michael K.).)
7
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
“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;
8
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,
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.3 (§§ 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.)
3 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‟”].)
9
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.4 (§ 6502.) The person who may be committed has a
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.)
4 Section 6500 et seq. addresses not only developmentally disabled persons
who are dangerous to themselves or others, but also developmentally disabled persons
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 Michelle, have not been charged with a
crime or committed because they are incompetent to stand trial.
10
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 4418.7.5 (§§ 6500, subd. (b)(1) & (2), 6509, subd. (a)(2), 7505, subd. (a)(2).)
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
5 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
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.
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
12
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
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.)
13
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.)
II
FACTS AND PROCEDURAL HISTORY
Michelle is a 51-year-old, developmentally disabled adult with an estimated
IQ of less than 23. She has been diagnosed with autistic disorder and other severe
intellectual disabilities, and she is prone to maladaptive behavior, including pica
(persistent eating of substances lacking nutritional value), slapping, and agitation.
Michelle is minimally verbal with limited ability to comprehend others. She is
ambulatory, but she cannot self-administer the many daily medications she requires, nor
can she provide for her basic personal needs such as food, shelter, and clothing. For her
own safety, Michelle requires regular supervision because she cannot appreciate basic
safety hazards and lacks sufficient knowledge to independently access community
facilities and services.
Michelle is the oldest of five children. In October 1972, her parents
admitted her to Fairview at the age of 10. Michelle‟s father passed away in 1985. Her
mother is still alive, but struggles with her own mental health issues and lives with
Michelle‟s brother, George, and his wife and four sons. George regularly visits Michelle
at Fairview and also brings her to his home for visits. George interacts with Michelle‟s
medical and professional teams at Fairview to coordinate her care and treatment.
14
In August 1987, shortly after Michelle‟s father died, the trial court
appointed George and Michelle‟s aunt, Coula, as Michelle‟s limited conservators under
the Probate Code.6 The court granted George and Coula the power “[t]o fix the residence
or specific dwelling of [Michelle], except at Fairview State Hospital absent court
approval,” give or withhold medical consent, and contract on Michelle‟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. George and Coula are
presently substituting another one of Michelle‟s brothers, Nick, for Coula because
Coula‟s health prevents her from continuing to serve as a coconservator.
Since 1993 the trial court has annually reviewed the suitability of
Michelle‟s Fairview placement under Hop and section 4825. The Harbor Regional
Center initiated each of these annual “Hop reviews” by requesting court approval for
Michelle to remain at Fairview. Each time the court conducted a Hop review, it
appointed the Public Defender to serve as Michelle‟s attorney and ultimately approved
Michelle‟s continued placement at Fairview subject to “further judicial review within one
(1) year.”
The Harbor Regional Center filed its most recent “Hop petition” in
January 2011, explaining “there is no known suitable, legally available placement [for
Michelle] that is less restrictive than the proposed state developmental center placement.”
In response, the court again appointed the Public Defender to serve as Michelle‟s attorney
and temporarily approved her continued placement at Fairview pending a hearing on the
Hop petition.
In November 2012, while the most recent Hop petition remained pending,
the Public Defender filed a habeas corpus petition on Michelle‟s behalf under
section 4800, which provides every adult admitted to a state developmental center the
6 George and Coula were not appointed as LPS conservators for Michelle.
15
right to petition for a hearing on whether the committee should be released. The petition
alleged Fairview unlawfully restrained Michelle‟s liberty because it is not the least
restrictive placement for her. The petition sought Michelle‟s release from Fairview, but
provided no information on whether Fairview offered the least restrictive placement or
where Michelle should be placed.
In early December 2012, George wrote the Public Defender to object to its
habeas corpus petition filed on Michelle‟s behalf without his consent. He explained the
trial court appointed him as Michelle‟s coconservator with the power to fix her residence
and select counsel to represent her in any legal proceeding. George further explained he
believed Fairview was the most suitable living environment for Michelle until the Harbor
Regional Center or someone else identified a specific alternative placement that meets all
of Michelle‟s needs. Accordingly, George stated he hired attorney Jon L. Rewinski to
represent Michelle on the pending Hop and habeas corpus petitions and he demanded the
Public Defender (1) withdraw the habeas corpus petition, and (2) execute a substitution of
attorney designating Rewinski as Michelle‟s attorney in place of the Public Defender.
The Public Defender did not respond to George‟s demands.
A few days later, the trial court conducted a hearing on the Hop and habeas
corpus petitions. Rewinski attempted to appear on Michelle‟s behalf, but the Public
Defender objected because the trial court previously appointed it to represent Michelle.
The court agreed and explained it would not allow Rewinski to appear on Michelle‟s
behalf unless the Public Defender voluntarily withdrew as Michelle‟s appointed counsel.
Rewinski informed the court George retained him to represent Michelle instead of the
Public Defender and he requested the opportunity to submit a brief demonstrating George
had the authority to replace appointed counsel with counsel of his choice. The trial court
refused to entertain the issue, explaining it already had decided the matter in another case
and did not want any additional briefing. The court then continued the hearing on the
Hop and habeas corpus petitions.
16
In response, George filed the current petition for writ of mandate or
prohibition on Michelle‟s behalf and sought an immediate stay of all trial court
proceedings regarding Michelle‟s placement. George contends (1) the Public Defender
lacks authority to pursue a section 4800 habeas corpus petition on Michelle‟s behalf and
that petition should be dismissed; (2) the trial court lacks jurisdiction under Hop to
review Michelle‟s Fairview placement and therefore the Hop petition should be
dismissed; and (3) the trial court erred in refusing to allow George to substitute Rewinski
for the Public Defender as Michelle‟s counsel. We ordered the Public Defender and
Harbor Regional Center to show cause why a writ of mandate or prohibition should not
issue. We also stayed all trial court proceedings on the habeas corpus and Hop petitions.7
III
DISCUSSION
A. The Public Defender May Not Pursue the Habeas Corpus Petition on Michelle’s
Behalf
The Public Defender filed the habeas corpus petition on Michelle‟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 . . .
7 The Public Defender contends we should dismiss the writ petition because
Rewinski lacks “standing” to bring the current writ petition on Michelle‟s behalf.
According to the Public Defender, it is Michelle‟s court-appointed counsel and therefore
the only attorney authorized to take action on her behalf. The Public Defender, however,
fails to cite any authority or provide any reasoned explanation to support its contention.
(Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [“„When an
appellant fails to raise a point, or asserts it but fails to support it with reasoned argument
and citations to authority, we treat the point as waived‟”].) Moreover, a party may seek
mandamus relief to compel a trial court to recognize new counsel when the trial court
refuses to allow a party to substitute attorneys. (8 Witkin, Cal. Procedure (5th ed. 2008)
Extraordinary Writs, § 110, p. 1003; Scott v. Superior Court (1928) 205 Cal. 525, 526.)
17
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 [Michelle‟s] behalf.” We
disagree because the Public Defender failed to establish an appropriate basis for pursuing
the petition.
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 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 very 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
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
18
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
placement, 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 Michelle‟s behalf or show the
remedies otherwise available to address Michelle‟s Fairview placement are inadequate.
Unlike the situation in Hop, we are not concerned with Michelle‟s initial placement at
Fairview for an indefinite period of time without a judicial hearing. Michelle has lived at
Fairview for more than 40 years. Since 1993 Michelle has been 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 Michelle not
only legal representation but also a jury trial and application of the beyond reasonable
doubt standard of proof on the scope of her disabilities and whether her disabilities
warrant her developmental center placement. The Public Defender provides no
19
explanation why the pending Hop review is an inadequate means for evaluating
Michelle‟s Fairview placement.
To the contrary, the Public Defender suggested a section 4800 habeas
corpus petition 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 Michelle‟s Fairview placement would
be 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.8 (Gandolfo, supra, 36 Cal.3d at pp. 898-899.)
Moreover, unlike Hop, Michelle has court-appointed conservators who are
authorized to act on her behalf in selecting her residence. (See Michael K., supra,
185 Cal.App.4th at p. 1128, fn. 14 [exceptional circumstances did not exist to allow
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 Michelle‟s
conservators are preventing the Harbor Regional Center from determining whether there
is a less restrictive placement that would meet Michelle‟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.
8 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
Neither the Public Defender nor Harbor Regional Center cite any evidence
in the record showing Michelle‟s conservators prevented the regional center from fully
assessing Michelle and her needs or otherwise identifying any less restrictive placements.
The Harbor Regional Center argues it cannot identify other possible placements for
Michelle without her conservators‟ cooperation because it may not disclose confidential
information about Michelle 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 Michelle‟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,
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.
21
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 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
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)
22
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 Michelle‟s
counsel for the pending Hop review. Assuming that appointment would otherwise
authorize the Public Defender to file a habeas corpus petition on Michelle‟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 Michelle‟s placement at Fairview. Accordingly, the Public
Defender may not pursue the current habeas corpus petition on Michelle‟s behalf.
B. The Trial Court Has Jurisdiction To Review Michelle’s Section 4825 Placement at
Fairview
1. Hop Requires an Initial Review of the Placement
George contends the trial court lacked authority to review Michelle‟s
Fairview placement because Hop does not apply to Michelle‟s placement. According to
George, Hop and its judicial hearing requirement only apply “when a developmentally
disabled adult is placed in a state developmental center „at the request of one not so
legally authorized.‟” In George‟s view, the Hop hearing requirement does not apply here
because Michelle‟s parents were legally authorized to place her in Fairview as a minor in
1972, and George and Coula were legally authorized to maintain that placement when the
trial court first reviewed it in 1993. George misconstrues Hop and its rationale for
requiring a judicial hearing.
Following Hop, a judicial hearing is required before a nonconsenting
developmentally disabled person may be placed in a state developmental center under
section 4825. It is the request to place the developmentally disabled person in a
developmental center that triggers Hop‟s judicial hearing requirement, not the authority
of the person making the request. (Hop, supra, 29 Cal.3d at pp. 92-93.) Hop requires a
judicial hearing for a section 4825 placement because the placement is essentially an
23
involuntary civil commitment and because other similarly situated individuals cannot be
placed in a developmental center without a judicial hearing. (Hop, at pp. 89-94.) Indeed,
Hop requires a judicial hearing to test the basis of a proposed section 4825 placement,
whether or not the person requesting the placement lacks authority to do so (Hop, at
pp. 86, 87, 92-94 [judicial hearing required for section 4825 placement requested by
parent who was not the developmentally disabled adult‟s conservator or guardian]) or has
been expressly granted the authority to do so (North Bay Regional Center v. Sherry S.
(1989) 207 Cal.App.3d 449, 460-461 (Sherry S.) [judicial hearing required for
section 4825 placement requested by duly appointed conservator].)
As the appellate court in Sherry S. 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.” (Sherry S., supra,207 Cal.App.3d at p. 461; Violet C., supra, 213 Cal.App.3d at p. 96.) Indeed, the
authority of the person requesting the section 4825 placement cannot determine whether a
judicial hearing is required because the only way to challenge that authority would then
be through a section 4800 habeas corpus petition after the developmentally disabled
person is placed in a developmental center. That result does not comport with Hop‟s due
process and equal protection rationale.
George‟s reliance on a single sentence in Hop is unavailing. He constructs
his entire argument that a Hop hearing is not required here based on the italicized
language in the following sentence: “From all of the foregoing considerations we
conclude that a developmentally disabled adult placed in a state hospital at the request of
one not so legally authorized (see, e.g., § 5358) may not be deemed a „voluntary‟
admittee because he or she neither requested nor knowingly agreed to the placement.”
(Hop, supra, 29 Cal.3d at p. 92, italics added.) George misinterprets this passage because
24
he fails to consider its context. This language appears in a section of the Hop decision
addressing whether a person placed in a developmental center under section 4825 should
be considered a voluntary admittee who waived the right to a judicial hearing. That
section of the opinion does not limit the right to judicial review to placements requested
by unauthorized persons. In any event, we note the letters of conservatorship appointing
George required court approval before he could fix Michelle‟s residence at Fairview.
Accordingly, George had no authority to place or keep Michelle in Fairview without
judicial review and approval.
Michelle‟s initial placement at Fairview when she was a minor and several
years before the Supreme Court announced the Hop decision in no way affects the trial
court‟s jurisdiction to review Michelle‟s Fairview placement. Michelle was an adult
when the Supreme Court announced the Hop decision in 1981 and when the trial court
first reviewed her Fairview placement in 1993. The hearing rights Hop established to
make a section 4825 placement constitutional apply not only to Hop and all
developmentally disabled persons placed in a development center after the Hop decision,
but also to all developmentally disabled persons who were subject to a section 4825
placement when the Supreme Court issued the Hop decision. (Hop, supra, 29 Cal.3d 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”].) Allowing
Michelle to remain indefinitely at Fairview under section 4825 without any judicial
review would be unconstitutional under Hop.
Accordingly, we conclude the trial court had jurisdiction to review
Michelle‟s Fairview placement when it first did so in 1993 because Hop required the
court to conduct at least an initial review to ensure the placement was warranted.
25
2. Hop Requires Periodic Reviews of the Placement
Assuming the trial court had authority to conduct an initial Hop review,
George contends the trial court nonetheless lacks authority to conduct periodic Hop
reviews regarding Michelle‟s ongoing placement at Fairview because the Hop decision
did not create ongoing jurisdiction to hear challenges to placement decisions or otherwise
review existing placements. According to George, the Lanterman Act‟s fair hearing
procedures offer the exclusive means for hearing challenges to Michelle‟s ongoing
Fairview placement. This argument fails because it would require us to ignore the terms
of the court orders approving Michelle‟s Fairview placement and the limited purpose of
periodic Hop reviews.
The initial judicial determination regarding Michelle‟s Fairview placement
occurred in 1993 when the trial court approved the placement subject to “further judicial
review within one (1) year.” Since then, Michelle has remained at Fairview under a
series of court orders approving her placement subject to annual judicial reviews. Every
court order approving the placement reserved jurisdiction for the court to do so. Indeed,
each time Michelle‟s Fairview placement came up for review, it was essentially a new
placement requiring judicial review regardless of whether the trial court had continuing
jurisdiction because the authorization for the previous placement had expired. George
does not dispute the trial court‟s authority to approve Michelle‟s Fairview placement for
a limited time subject to further judicial review, and therefore his challenge to the trial
court‟s jurisdiction to periodically review Michelle‟s placement fails.
We nonetheless consider whether Hop itself provides the trial court with
authority to periodically review Michelle‟s placement to determine whether her
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
26
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
[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, 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. We see no basis to justify the
lifetime placement of a nondangerous developmentally disabled person under
27
section 4825 based solely on an initial judicial review. George does 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.
George contends Michelle 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 George, persons placed under section 4825 are free to leave the developmental center
any time they or their legal representatives choose, unlike those placed under the
LPS Act, section 6500 et seq., or other statutory provisions. Hop, however, rejected this
identical argument. As explained above, Hop concluded developmentally disabled
persons incapable of objecting to their placement because of their disabilities 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.)
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 an existing placement,” 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
28
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
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
29
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.)
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
30
center placement is not jurisdiction to monitor the ongoing placement or make decisions
regarding the details of the services the developmentally disabled person receives. 9
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.) Hop merely 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.10
9 The parties did not brief what constitutes the appropriate interval between
Hop reviews and that issue is not presented here because each order approving Michelle‟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 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).)
10 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
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.11 (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
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
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.
11 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
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.)
Contrary to George‟s 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
33
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
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 Michelle the due process and equal protection
safeguards Hop requires because neither the regional center nor the developmental center
changed Michelle‟s placement or any of her other services, and therefore neither
Michelle nor George had the right to request a hearing under the administrative fair
hearing procedures.12
Accordingly, the trial court may proceed with the pending Hop review
hearing to determine whether Michelle‟s disabilities continue to justify her placement in a
developmental center. If the trial court determines Michelle‟s Fairview placement is no
longer warranted because a less restrictive facility can meet her needs, George may
request Michelle‟s transfer to a specific facility of his choosing and urge adoption of the
services he believes are necessary. The administrative fair hearing procedures should be
used to resolve any challenge George has to the facility the regional center ultimately
may select for Michelle and the services to be provided at that facility. The trial court
should not resolve any such challenges in the first instance during the Hop review, which
is limited to deciding whether appropriate efforts have been made to identify a less
12 Because neither the Harbor Regional Center nor Fairview made any
decision that would have allowed Michelle or George to invoke the administrative fair
hearing procedures, we need not decide whether these administrative procedures would
satisfy Hop if there were an administrative hearing before an independent hearing officer.
34
restrictive facility that satisfies all of Michelle‟s needs and whether at least one such
facility exists. Assuming the trial court concludes Michelle should be transferred, she
should not be transferred until all issues regarding her 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 the
treatment program and potentially harmful to the [patient] and the community‟”];
see also Sherry S., supra, 207 Cal.App.3d at p. 463.)
C. The Right to Independent Appointed Counsel Prevents a Conservator From
Selecting the Conservatee’s Counsel for the Hop Review
George contends the trial court erred in refusing to substitute the attorney
he hired to represent Michelle on the pending Hop petition for the court appointed Public
Defender. We conclude the court did not err because Michelle‟s right to counsel on the
Hop petition is a right to independent counsel appointed to protect her fundamental right
to personal liberty. Because the Public Defender was appointed as independent counsel
for Michelle, George may not replace the Public Defender with counsel of his choice
even though he is Michelle‟s legal representative for most purposes.13
Hop found a developmental center placement constitutes a substantial
deprivation of personal liberty and therefore a section 4825 committee is entitled to many
of the same constitutional safeguards as a criminal defendant, including a judicial hearing
to test the basis for the placement, a jury trial, application of the beyond a reasonable
doubt standard of proof, and appointed counsel. (Hop, supra, 29 Cal.3d at pp. 89, 93-94.)
Based on the fundamental liberty interest at stake, Hop requires these safeguards even
13 Our discussion focuses on Michelle‟s right to appointed counsel on the
pending Hop petition rather than the section 4800 habeas corpus petition because, as
explained above, we find the Public Defender lacked authority to pursue the habeas
corpus petition and the suitability of Michelle‟s Fairview placement should be decided on
the Hop petition. We therefore do not consider George‟s argument that Michelle‟s right
to counsel is a statutory right as opposed to one arising under Hop.
35
though only a developmentally disabled person‟s parent or conservator may request a
section 4825 developmental center placement. (§ 4825; Violet C., supra, 213 Cal.App.3d
at p. 92; Sherry S., supra, 207 Cal.App.3d at p. 457.)
Although the Hop court presumed parents and conservators “„are well
motivated and act in what they reasonably perceive to be the best interest of their children
[or conservatees],” the court concluded “[t]hat fact cannot . . . detract in any way from the
child[ or conservatee‟s] right to procedures that will protect him from arbitrary
curtailment of his liberty interest in such a drastic manner [as developmental center
placement] no matter how well motivated.‟ [Citations.]” (Hop, supra, 29 Cal.3d at
p. 93.) Indeed, “[n]o 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.” (Capitol People, supra, 155 Cal.App.4th at p. 699.)
“[U]nder 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.”
(Capitol People, supra, 155 Cal.App.4th at p. 699.) We may not substitute the good
intentions of a developmentally disabled person‟s parent or conservator for the person‟s
right to a hearing, appointed counsel, or any other constitutional safeguard Hop requires.
(Hop, supra, 29 Cal.3d at p. 93.) We therefore conclude the right to appointed counsel
under Hop is a right to independent counsel.
We find support for our conclusion in other cases that hold a person is
entitled to independent counsel when his or her conservator or representative seeks to
take an action that would significantly impact the person‟s fundamental rights. For
example, in Wendland v. Superior Court (1996) 49 Cal.App.4th 44 (Wendland), the
Court of Appeal found the trial court erred in refusing to appoint independent counsel for
a conservatee. The conservatee‟s wife, acting as temporary conservator, petitioned the
trial court to remove the conservatee‟s feeding tube because he suffered from severe
36
brain injuries, was mostly paralyzed, and could not communicate, although the
conservatee was not in a persistent vegetative state. The conservatee‟s mother and sister
opposed the petition and asked the trial court to appoint independent counsel for the
conservatee. (Id. at pp. 46-47.) The trial court denied the request because it found the
conservatee‟s mother and sister adequately represented his interests. (Id. at p. 48.)
In reversing that decision, the appellate court found the mother‟s and
sister‟s opposition to the petition to remove the feeding tube did not necessarily mean
they represented the conservatee‟s interests, and therefore the conservatee was entitled to
an independent representative who would identify and advocate for the conservatee‟s
interests. As the Wendland court explained, “[A] person facing the final accounting of
death should not be required to rely on the uncertain beneficence of relatives. . . . [The
conservatee‟s] mother and sister . . . do [not] necessarily represent his interests. [¶] . . .
[¶] Because [the conservatee‟s] very life is at stake, he is entitled to counsel to represent
his interests, whatever those interests might be.” (Id. at p. 52; see also Conservatorship
of Sides (1989) 211 Cal.App.3d 1086, 1092-1093 [proposed conservatee entitled to
independent appointed counsel in proceeding to appoint conservator]; In re David C.
(1984) 152 Cal.App.3d 1189, 1208 [child entitled to independent appointed counsel on
county‟s petition to terminate child‟s parental rights].)
Conservatorship of Drabick (1988) 200 Cal.App.3d 185 (Drabick), also
involved a conservator‟s petition to remove his conservatee‟s feeding tube, but the
conservatee in Drabick was in a persistent vegetative state. (Id. at p. 189.) The trial
court appointed independent counsel for the conservatee and the question on appeal was
not whether independent counsel should have been appointed, but whether appointed
counsel was required to oppose the petition. After conducting an independent
investigation, the appointed counsel concluded removing the feeding tube was in the
conservatee‟s best interest and therefore did not oppose the conservator‟s petition. The
Drabick court held appointed counsel‟s role was to independently determine and
37
represent the conservatee‟s best interests regardless of whether those interests were
consistent or inconsistent with the actions the conservator sought on the conservatee‟s
behalf: “When an incompetent conservatee is still able to communicate with his attorney
it is unclear whether the attorney must advocate the client‟s stated preferences—however
unreasonable—or independently determine and advocate the client‟s best interests.
[Citation.] When the client is permanently unconscious, however, the attorney must be
guided by his own understanding of the client‟s best interests. There is simply nothing
else the attorney can do.” (Id. at pp. 212-213.)
Here, we are concerned with Michelle‟s fundamental right to personal
liberty, which the Hop court found “„second only to life itself.‟” (Hop, supra, 29 Cal.3d
at p. 89.) Moreover, although Michelle is not permanently unconscious, the parties agree
she is incompetent, cannot communicate her preferences to counsel, and cannot otherwise
assist counsel in determining her best interests. Accordingly, we find Michelle‟s right to
independent counsel analogous to the conservatees‟ right in Wendland and Drabick. We
acknowledge the right to appointed counsel in Wendland and Drabick was statutorily
created while the right to appointed counsel under Hop was judicially created.
Nonetheless, the rationale and need for independent appointed counsel exists when a
conservator or other representative proposes acts that would significantly affect the
person‟s fundamental rights. (See Conservatorship of David L. (2008) 164 Cal.App.4th
701, 710 (David L.) [regardless of whether right to effective assistance of counsel is
constitutional in nature, “once such a right has been conferred, a proposed conservatee
has an interest in it which is protected by the due process clause of the Constitution”].)
Because we conclude Michelle‟s right to appointed counsel under Hop is
the right to independent counsel, we also conclude George may not replace the court
appointed Public Defender with private counsel. Allowing George to select Michelle‟s
counsel for the Hop hearing would render her right to independent counsel meaningless
because George simply could replace the Public Defender with counsel who would
38
follow George‟s instructions without independently evaluating whether those instructions
are in Michelle‟s best interest. George assumes his decisions about Michelle‟s placement
are necessarily in her best interest. His position leaves no room for good faith
disagreement. As explained above, the purpose of independent counsel under Hop is to
prevent the arbitrary curtailment of a developmentally disabled person‟s fundamental
right to personal liberty by a parent or conservator pursuing placement on the
developmentally disabled person‟s behalf. We do not suggest George is doing anything
other than what he in good faith believes to be in Michelle‟s best interests, but his good
faith and benevolent intentions cannot serve as a substitute for the constitutional
safeguard independent appointed counsel provides.14 (Hop, supra, 29 Cal.3d at p. 93.)
Accordingly, we conclude the trial court did not err in refusing to substitute the attorney
George hired for the Public Defender.
But we emphasize the limited scope and purpose of the Hop hearing and
the appointment of counsel for that hearing. As Michelle‟s appointed counsel, the Public
Defender does not become her counsel or representative for all purposes. Rather, the
Public Defender represents Michelle solely to test whether her disabilities warrant
placement in the most restrictive environment available under the Lanterman Act. The
Public Defender must independently investigate Michelle‟s disabilities and her needs to
determine whether they continue to require developmental center placement. The Public
Defender is not required to oppose developmental center placement, but rather to identify
and advocate for Michelle‟s best interests regardless of whether those interests require
developmental center placement or placement in a less restrictive facility. (Wendland,
supra, 49 Cal.App.4th at p. 52; Drabick, supra, 200 Cal.App.3d at pp. 212-214.) The
14 The evidence shows George and his family are devoted to Michelle and
have sought continually to provide for her well-being. Their efforts no doubt reflect
those of the great majority of conservators whose only motivation is to ensure their loved
ones receive the best available care.
39
Public Defender does not have authority to make any decisions on Michelle‟s behalf; he
merely evaluates whether her disabilities warrant keeping her at Fairview and presents
that determination to the court. Moreover, the appointment of independent counsel does
not mean George has no role in the process and may not participate in the Hop hearing.
To the contrary, George remains Michelle‟s representative and he may continue to
advocate for the placement he believes is best suited for Michelle. George lacks
authority to control the Public Defender‟s actions, but he may voice his opposition to
those actions.
George contends an attorney appointed to represent a developmentally
disabled person under Hop is independent with the power to decide whether to advocate
for or against developmental center placement only when (1) the developmentally
disabled person has no other legal representative, or (2) a “legal conflict” exists between
the developmentally disabled person and his or her legal representative. According to
George, Michelle does not require independent counsel, and the Public Defender must
follow his instructions, because the court order appointing him as Michelle‟s limited
conservator makes him her legal representative and he has no legal conflict with
Michelle. This argument fails for two reasons.
First, Michelle‟s right to and the authority of her independent counsel under
Hop do not depend on the absence of any other legal representative for Michelle. The
conservatees in Wendland and Drabick both had an appointed conservator acting as a
legal representative, but the conservatees nonetheless had a right to independent
appointed counsel who was not required to follow the appointed conservator‟s directives.
(Wendland, supra, 49 Cal.App.4th at pp. 47-48, 52; Drabick, supra, 200 Cal.App.3d at
pp. 189, 212-214.) Moreover, placement in a developmental center under section 4825
may only be sought by a developmentally disabled person‟s legal representative (§ 4825;
Violet C., supra, 213 Cal.App.3d at p. 92; Sherry S., supra, 207 Cal.App.3d at p. 457),
and therefore accepting George‟s contention would mean a developmentally disabled
40
person would never have a right to independent appointed counsel under Hop.
Michelle‟s right to independent counsel, however, arises from the significance of the
interest at stake on the Hop petition—Michelle‟s fundamental right to personal liberty—
not from the absence of a legal representative for Michelle.
Second, George provides no explanation or authority to support his
conclusion he has no legal conflict with Michelle. Hop bases the right to appointed
counsel and the other constitutional safeguards it requires on the inherent conflict that
arises when a parent or conservator seeks developmental center placement for a
developmentally disabled person. Because the placement has a significant impact on the
developmentally disabled person‟s fundamental right to personal liberty, Hop requires
constitutional safeguards to ensure the developmentally disabled person‟s disabilities
justify the placement. Whether there is an actual conflict between the developmentally
disabled person and the parent or conservator seeking the placement cannot be
determined until the court determines whether the placement is justified (if the placement
is justified, there is no actual conflict). To require an actual conflict before granting a
developmentally disabled person the right to independent counsel would render the right
illusory. That is clearly not Hop‟s intent.
George also argues he may exercise Michelle‟s absolute right to replace her
counsel at any time because he is Michelle‟s legal representative with the power to fix
her residence, give or withhold medical consent, and contract on Michelle‟s behalf. As a
general rule, a client has the right to replace his or her attorney at virtually any time with
or without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 983; People v. Courts (1985)
37 Cal.3d 784, 789-790 [criminal defendant may replace his or her appointed counsel
with new, retained counsel at any time]; Fracasse v. Brent (1972) 6 Cal.3d 784, 790.)
These rules, however, do not support George‟s position. Although George is Michelle‟s
legal representative and the holder of her attorney-client privilege (Evid. Code, § 953),
Michelle remains the client (Evid. Code, § 951). George does not cite any authority
41
allowing a conservator to replace a conservatee‟s court appointed independent counsel
with counsel the conservator selected. As explained above, allowing a conservator to do
so would render the right to independent appointed counsel meaningless.
Finally, George contends Drabick requires the Public Defender to follow
his instructions. It does not. In Drabick, the Court of Appeal held a conservator must
have the power to exercise a comatose conservatee‟s right to refuse medical treatment
and not have his or her life artificially extended because the right would be rendered
meaningless if someone could not exercise it on the comatose conservatee‟s behalf.
(Drabick, supra, 200 Cal.App.3d at pp. 208-210.) The Drabick court, however, did not
conclude the conservatee‟s appointed counsel must follow the conservator‟s instructions.
To the contrary, the court held appointed counsel must independently determine and
advocate for the conservatee‟s best interests regardless of whether those interests
coincide with the conservator‟s course of action on the conservatee‟s behalf. (Id. at
pp. 212-214.) As explained above, independent appointed counsel provides an important
check and balance against a conservator‟s efforts to take action on an incompetent
conservatee‟s behalf that would significantly affect the conservatee‟s fundamental rights.
Appointed counsel does not exercise the right for the conservatee or veto the
conservator‟s exercise of the right for the conservatee; rather, appointed counsel provides
an independent view of what is in the conservatee‟s best interest. Here, the trial court
ultimately will decide whether Michelle‟s Fairview placement remains warranted based
on all of the information received from George, the Public Defender, the Harbor Regional
Center, and any other interested parties.
D. A Conservator May Seek New Appointed Counsel for the Hop Petition If He
Believes the Public Defender Is Not Providing Effective Representation
Our conclusion George may not replace Michelle‟s appointed counsel with
counsel of his choice does not mean George is powerless to challenge the adequacy of the
Public Defender‟s representation. Michelle‟s right to appointed counsel is a right to
42
effective counsel, and the trial court must provide George, as Michelle‟s legal
representative, a full opportunity to request new appointed counsel for her if he believes
the Public Defender is not providing Michelle effective assistance. (See David L., supra,
164 Cal.App.4th at pp. 705-706.)
In David L., the public guardian filed a petition to appoint an LPS
conservator for a prospective conservatee and the trial court appointed the public
defender to represent the prospective conservatee. On the third day of the trial to
determine whether the prospective conservatee was gravely disabled and in need of a
conservator, the public defender advised the court the prospective conservatee “was
„suffering from extreme anxiety, stomach issues, and he can‟t come to court.‟” The
public defender further advised the prospective conservatee wanted another appointed
lawyer because he believed the public defender was not adequately representing him, but
the public defender could not provide any further explanation. The trial court denied the
request, proceeded with the trial in the prospective conservatee‟s absence, found the
prospective conservatee gravely disabled, and appointed an LPS conservator. (David L.,
supra, 164 Cal.App.4th at pp. 706-708.) The Court of Appeal concluded the trial court
violated the prospective conservatee‟s due process rights because he “was not given a full
opportunity to state his reasons for requesting substitute counsel, and thus, was not
afforded due process in the determination of his request for substitute counsel.” (Id. at
p. 712.)
The David L. court explained that the statutory or constitutional right to
appointed counsel necessarily includes the right to effective counsel under the
Constitution‟s due process clause. Moreover, because of the significant liberty interest at
stake in an LPS conservatorship proceeding and the confinement in a locked treatment
facility that may result from the proceeding, a prospective conservatee is entitled to many
of the same due process protections as a criminal defendant, including the right to seek
new appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), if the
43
prospective conservatee believes her appointed counsel is not providing effective
representation. (David L., supra, 164 Cal.App.4th at pp. 710-711.)
In Marsden, the Supreme Court held trial courts must provide criminal
defendants seeking to change appointed counsel an opportunity to state the reasons for
their request because “„“[t]he right of a defendant in a criminal case to have the
assistance of counsel for his defense . . . may include the right to have counsel appointed
by the court . . . discharged or other counsel substituted, if it is shown . . . that failure to
do so would substantially impair or deny the right . . . .”‟ [Citations.]” (Marsden, supra,
2 Cal.3d at pp. 123-124; David L., supra, 164 Cal.App.4th at p. 709.) The Marsden court
explained, “A trial judge is unable to intelligently deal with a defendant‟s request for
substitution of attorneys unless he is cognizant of the grounds which prompted the
request. The defendant may have knowledge of conduct and events relevant to the
diligence and competence of his attorney which are not apparent to the trial judge from
observations within the four corners of the courtroom. . . . A judicial decision made
without giving a party an opportunity to present argument or evidence in support of his
contention „is lacking in all the attributes of a judicial determination.‟ [Citation.]”
(Marsden, at pp. 123-124; David L., at p. 711.)
The David L. court found “no meaningful distinction between criminal and
LPS proceedings insofar as the procedures required to guard against the erroneous
deprivation of the right to effective assistance of counsel,” and therefore “conclude[d]
that the trial court must afford a prospective conservatee a full opportunity to state the
reasons for requesting substitute counsel in accordance with Marsden.” (David L., supra,
164 Cal.App.4th at p. 711.) The trial court erred by failing to do so.
In Hop, the Supreme Court found a section 4825 placement of a
developmentally disabled person in a state developmental center was analogous to a
prospective conservatee under the LPS Act and therefore the developmentally disabled
person was “entitled to the same congeries of rights” as a prospective LPS conservatee.
44
(Hop, supra, 29 Cal.3d at p. 93.) Consequently, we conclude the trial court in a Hop
review must afford a developmentally disabled person a full opportunity to request new
appointed counsel and to state the reasons for that request under the procedures
established in Marsden.
Here, the parties agree Michelle is incompetent and unable to personally
exercise her right to request new appointed counsel. That inability, however, does not
mean Michelle is any less entitled to effective representation or any less entitled to
request new appointed counsel if the representation she is receiving is ineffective.
“[I]ncompetence does not cause the loss of a fundamental right from which the
incompetent person can still benefit.” (Drabick, supra, 200 Cal.App.3d at p. 208.)
Indeed, in enacting the Lanterman Act the Legislature declared, “Persons with
developmental disabilities have the same legal rights and responsibilities guaranteed all
other individuals by the United States Constitution and laws and the Constitution and
laws of the State of California.” (§ 4502; see also Hop, supra, 29 Cal.3d at p. 89
[“persons will not be deprived of due process or equal protection of law on the basis of
developmental disability alone”].)
Accordingly, we conclude George, as Michelle‟s legal representative with
the power to fix her residence, provide or withhold medical consent, and contract on her
behalf, may exercise Michelle‟s right to request new appointed counsel if he believes the
Public Defender is not providing effective representation. Michelle‟s right to effective
counsel and to request new appointed counsel would be meaningless unless someone is
permitted to exercise the right for her. (See Drabick, supra, 200 Cal.App.3d at p. 209.)
We acknowledge George did not seek to exercise Michelle‟s right to request new
appointed counsel, but rather sought to substitute new, private counsel he retained for
Michelle in place of the Public Defender. As explained above, George may not do so.
But in connection with the trial court‟s Hop review of Michelle‟s Fairview placement, the
trial court must allow George to request new appointed counsel if he believes the Public
45
Defender is providing Michelle ineffective representation and must provide George a full
opportunity to state the reasons for the request under Marsden.15 We express no opinion
on whether the Public Defender has adequately represented Michelle.
IV
DISPOSITION
The petition is granted in part and denied in part. Let a writ of mandate
issue directing the trial court to (1) enter an order dismissing the habeas corpus petition;
(2) conduct a hearing on the Hop petition; and (3) hear and decide any request to appoint
new counsel for Michelle. 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.
15 George argues Marsden does not apply based on his contention he had the
right to replace the Public Defender with private counsel of his choice. George is correct
Marsden does not apply when a criminal defendant seeks to replace appointed counsel
with retained counsel. (In re V.V. (2010) 188 Cal.App.4th 392, 398.) As explained
above, however, George‟s only option is to ask for new appointed counsel for Michelle;
he may not replace the Public Defender with retained counsel. In that situation, George
concedes Marsden applies.
46