Raymond C. v. Super. >Ct.>

 

 

 

 

 

 

 

 

 

 

Field 11/12/13  Raymond C. v. Super. Ct. CA4/3

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

RAYMOND C. et al.,         Petitioners,               v.   THE SUPERIOR COURT OF ORANGE COUNTY,         Respondent;   JOHN C. et al.,         Real Parties in Interest.

G046836   (Super. Ct. Nos. A169785 & 30‑2011-00530355)   O P I N I O N

 

Original
proceedings; petition for a writ of mandate/prohibition to challenge an order
of the Superior Court
of Orange County,
Caryl Lee, Judge.  Petition granted; writ
issued.

Locke
Lord, Jon L. Rewinski, Stephen A. Tuggy and Matthew B. Nazareth for Petitioners.

Farella
Braum + Martel, Mark D. Petersen and Alex Reese for California Association of
State Hospital Parent Councils for the Retarded as Amicus Curiae on behalf of
Petitioners.

Law
Offices of Brian D. Rondon and Brian D. Rondon for Parent Hospital Association
of Sonoma Developmental Center as Amicus Curiae on behalf of Petitioners.

Law
Offices of Christopher A. Poulos and Christopher A. Poulos for Parents
Coordinating Council of Lanterman Developmental Center as Amicus Curiae on
behalf of Petitioners.

No
appearance for Respondent.

Frank
Ospino, Public Defender, Mark S. Brown, Assistant Public Defender, and Kira
Rubin, Deputy Public Defender, for Real Party in Interest John C.

Enright
& Ocheltree, Judith A. Enright and Julie A. Ocheltree for Real Party in
Interest Harbor Developmental Disabilities Foundation, doing business as Harbor
Regional Center.

William
Leiner, Dara Schur, Connie Chu and Monisha Coelho for Disability Rights
California and National Disability Rights Network as Amici Curiae on behalf of
Real Party in Interest John C.

Michelman
& Robinson, Mona Z. Hanna, Jeffrey D. Farrow and Robin James for
Association of Regional Center Agencies, Inc., as Amicus Curiae on behalf of
Real Party in Interest Harbor Developmental Disabilities Foundation, doing business
as Harbor Regional Center.

*                      *                      *

Petitioners
Raymond C., Carol C., and Andrea C. (collectively, Petitioners), who are coconservators
for real party in interest John C.,href="#_ftn1"
name="_ftnref1" title="">[1]
seek writ relief to prevent the trial court from conducting an href="http://www.mcmillanlaw.com/">evidentiary hearing on a habeas corpus
petition the Orange County Public Defender (Public Defender) filed on John’s
behalf to obtain his release from Fairview Developmental Center (Fairview).  John is a 57-year-old, developmentally
disabled adult who has resided at Fairview for more than 47 years due to a
series of placements made under the Lanterman Developmental Disabilities
Services Act (Lanterman Act; Welf. & Inst. Code, § 4500 et seq.).href="#_ftn2" name="_ftnref2" title="">[2]  The Public Defender brought the habeas corpus
petition under section 4800 because it contends less restrictive
facilities can provide similar care for John and the Lanterman Act mandates placement
of developmentally disabled persons in the least restrictive environment
capable of meeting their needs. 
Petitioners contend the Public Defender lacks authority to pursue the
habeas corpus petition because they, as John’s legal representatives, believe
Fairview is the best placement for John.

We
agree the Public Defender lacks authority to pursue the habeas corpus petition
on John’s behalf.  Supreme Court
precedent establishes that the Public Defender may not pursue a section 4800
habeas corpus petition on a developmentally disabled person’s behalf without
establishing “‘very exceptional
circumstances’” (In re Hop (1981)
29 Cal.3d 82, 86-87 (Hop),
original italics) and that other available remedies for challenging the
placement are inadequate (In re Gandolfo
(1984) 36 Cal.3d 889, 897-900 (Gandolfo)).  We conclude very exceptional circumstances
are not present in this case and the existing remedies are adequate because
John’s Fairview placement has been subject to periodic judicial review for
nearly 20 years, a hearing on the next periodic review already was
scheduled when the Public Defender filed the habeas corpus petition, and the
Public Defender failed to show Petitioners are not acting in John’s best
interest.

Although
we agree with Petitioners the Public Defender may not pursue its habeas corpus
petition, we do not agree with their contention the Lanterman Act’s
administrative fair hearing procedures deprive the trial court of jurisdiction
to periodically review John’s placement. 
The fair hearing procedures provide the exclusive means for challenging
a specific decision to change John’s placement or the other services he
receives, but those procedures do not prevent the trial court from periodically
reviewing whether his developmental center placement is still warranted.  In Hop,
the Supreme Court held that a developmentally disabled person could not be
placed in a developmental center under the Lanterman Act without a judicial
hearing on whether the person’s disabilities warrant placement in the most
restrictive environment available. 
Because placement in a developmental center constitutes a significant
restraint on the developmentally disabled person’s fundamental liberty
interests, the Hop court concluded
the person’s due process and equal protection rights require a judicial
determination regarding the suitability of the placement.  As explained below, we conclude >Hop’s rationale also requires periodic
independent reviews to ensure the developmentally disabled person’s disability
continues to warrant placement in a developmental center. 

Accordingly,
we issue a writ of mandate directing the trial court to (1) enter an order
dismissing the habeas corpus petition the Public Defender filed on John’s
behalf, and (2) proceed with the Hop
review hearing on John’s Fairview placement.

I

Legal Background

To
explain the roles performed by the various persons and entities involved in
John’s Fairview placement, and to put the parties’ contentions in the proper
context, we begin by providing an overview of the principal statutory scheme at
issue, the Lanterman Act, and two related statutory schemes, the Lanterman-Petris-Short
Act (LPS Act; § 5000 et seq.) and section 6500 et seq.  These acts authorize confinement of
developmentally disabled or mentally ill persons in a state developmental
center (also referred to as a state hospital in some statutes) when certain
conditions are satisfied.  We also
summarize the Supreme Court’s Hop
decision and the limits it places on a developmentally disabled person’s
commitment to a developmental center under the Lanterman Act.

A.        The Lanterman Act

“Enacted
in 1977, the Lanterman Act establishes a comprehensive scheme for providing
services to people with developmental disabilities.”  (Capitol
People First v. State Dept. of Developmental Services (2007)
155 Cal.App.4th 676, 682 (Capitol
People).)  The Act’s stated purpose
is to establish “[a]n array of services and supports . . . which is
sufficiently complete to meet the needs and choices of each person with
developmental disabilities, regardless of age or degree of disability, and at
each stage of life and to support their integration into the mainstream life of
the community.”  (§ 4501.) 

A
“‘[d]evelopmental disability’” is “a disability that originates before an
individual attains age 18 years, continues, or can be expected to continue,
indefinitely, and constitutes a substantial disability for that individual.”  (§ 4512, subd. (a).)  The term includes “mental retardation,
cerebral palsy, epilepsy, and autism,” but does not include “other handicapping
conditions that are solely physical in nature.” 
(Ibid.)

The
state contracts with private nonprofit corporations to establish and operate a
network of 21 regional centers that are responsible for determining
eligibility, assessing needs, and coordinating and delivering direct services
to developmentally disabled persons and their families.  (Capitol
People, supra,
155 Cal.App.4th at pp. 682‑683.)  The regional centers’ purpose is to “assist
persons with developmental disabilities and their families in securing those
services and supports which maximize opportunities and choices for living,
working, learning, and recreating in the community.”  (§ 4640.7, subd. (a).)  The state “allocates funds to the centers for
operations and the purchasing of services, including funding to purchase
community‑based services and supports.  [Citations.]” 
(Capitol People, at
p. 683.)

“The
specific rights of persons with developmental disabilities and the
corresponding obligations of the state are determined through an individual
program plan (IPP) procedure that meets common statutory requirements.  (§§ 4646-4648.)  The IPP is developed by a planning team that
includes the [developmentally disabled person], his or her legally authorized
representative, and one or more regional center representatives.  (§ 4512, subd. (j).)  The goals and objectives developed through the
IPP process should maximize opportunities for the individual to be part of
community life; enjoy increased control over his or her life; acquire positive
roles in community life; and develop the skills to accomplish the same.  (§ 4646.5, subd. (a)(2).)”  (Capitol
People, supra,
155 Cal.App.4th at p. 683.)

Before
July 1, 2012, a nondangerous, developmentally disabled person could be admitted
to a state developmental center in two ways. 
First, the person could submit a written admission application if he or
she “is in such condition of mind as to render him competent to make [the
application].”  (§ 6000,
subd. (a)(1).)  Second,
section 4825 authorized admission “upon the application of the person’s
parent or conservator in accordance with the provisions of Sections 4653
and 4803.”  (See also
§ 6000.5.)  Section 4653 states
“no developmentally disabled person shall be admitted to a state hospital
except upon the referral of a regional center.” 
Section 4803 provides that a regional center may not recommend
admission of a developmentally disabled person to a community care or health
facility unless the regional center certifies the person to be admitted or the
person’s parent or conservator does not object. 
Section 4825 does not limit the length of a developmentally
disabled person’s commitment, nor does it require judicial review of the
placement.

Effective
July 1, 2012, the Legislature amended the Welfare and Institutions Code to
prohibit nondangerous, developmentally disabled persons from being admitted to
state developmental centers. 
(§§ 4507, 7505.) 
Section 7505 now provides that a person shall not be admitted to a state developmental center unless the person
is developmentally disabled and the
person is:  (1) committed by a court
to Fairview Developmental Center because the person is a danger to self or
others under section 6500 and is suffering an acute crisis as defined in
section 4418.7; (2) committed by a court to the Porterville
Developmental Center’s secure treatment program through the criminal justice
system or juvenile court system; or (3) a prior resident of a
developmental center who was provisionally released no more than 12 months
earlier.

These
recent Welfare and Institution Code amendments do not require moving
nondangerous, developmentally disabled persons living in a state developmental
center on July 1, 2012, to a different facility.  Instead, the amendments require the regional
center responsible for the committee to conduct a comprehensive assessment and
“identify the types of community-based services and supports available to the
[person].”  (§ 4418.25,
subd. (c)(2)(A) & (B).)  The
regional center must then provide the assessment to the individual program
planning team to assist it in determining the least restrictive environment for
the committee.  (§ 4418.25,
subd. (c)(2)(D).)

“[T]he
Lanterman Act guarantees an applicant for or recipient of services or his or
her representative ‘who is dissatisfied with any decision or action of [a
regional center or developmental center]’ the right to an administrative fair
hearing.  [Citation.]”  (Conservatorship
of Whitley (2007) 155 Cal.App.4th 1447, 1459 (Whitley); § 4704.)  The
fair hearing procedures are designed to decide “all issues concerning the
rights of persons with developmental disabilities to receive services under [the
Act].”  (§ 4706, subd. (a).)  The fair hearing procedures include “detailed
provisions for claimants who wish to attempt to resolve the issue through a
voluntary informal meeting or through voluntary mediation before proceeding to
an administrative fair hearing.  [Citations.]”  (Whitley,
at 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.href="#_ftn3" name="_ftnref3" title="">[3]  (See In
re Michael K. (2010) 185 Cal.App.4th 1112, 1126 (Michael K.).)

B.        The LPS Act

The
LPS Act “governs the involuntary treatment of the mentally ill in
California.”  (Susan T., supra, 8 Cal.4th
at p. 1008.)  It “is intended to
provide prompt, short-term, community-based intensive treatment, without stigma
or loss of liberty, to individuals with mental disorders who are either
dangerous or gravely disabled.”  (>Ford v. Norton (2001)
89 Cal.App.4th 974, 977.)  A person
is “‘gravely disabled’” under the LPS Act if the “person, as a result of a
mental disorder, is unable to provide for his or her basic personal needs for
food, clothing, or shelter.” 
(§ 5008, subd. (h)(1)(A).) 
The term “does not include mentally retarded persons by reason of being
mentally retarded alone.”  (§ 5008,
subd. (h)(3).) 

When
probable cause exists to believe a mental disorder makes a person “a danger to
others, or to himself or herself, or gravely disabled,” the LPS Act authorizes
a peace officer or certain mental health professionals to detain the person for
a 72-hour treatment and evaluation period. 
(§ 5150.)  Following that
period, the person may be detained for increasingly longer periods depending on
the results of the initial evaluation and treatment.  (See, e.g., § 5250 [additional intensive
14-day treatment period if person remains “a danger to others, or to himself or
herself, or gravely disabled”]; § 5260 [second intensive 14-day treatment
period if the person is suicidal]; § 5270.15 [additional 30-day treatment
period if person remains gravely disabled, he or she is unwilling to
voluntarily accept treatment, and the county board of supervisors authorized
30-day treatment periods]; § 5300 [additional 180-day commitment if person
is imminently dangerous]; § 5304, subd. (b) [second 180-day
commitment if person remains imminently dangerous].) 

The
14-day and 30-day confinements require a certification hearing before a
court-appointed commissioner or hearing officer to determine whether probable
cause exists for the detention unless the person has filed a habeas corpus
petition seeking judicial review of the confinement.  (§§ 5256, 5256.1, 5262, 5270.15, 5275,
5276; Susan T., >supra, 8 Cal.4th at
p. 1009.)  The confined person has a
right to appointed counsel at any hearing on a habeas corpus petition.  (§§ 5275, 5276.)  The 180-day commitments require a trial court
order following a judicial hearing at which the confined person is entitled to
appointed counsel, a jury trial, proof beyond a reasonable doubt, and a
unanimous verdict on whether he or she is imminently dangerous.  (§§ 5301-5303; Susan T., at p. 1009; Conservatorship
of Roulet (1979) 23 Cal.3d 219, 230-233 (Roulet).)

The
LPS Act also authorizes the trial court to appoint a conservator for a gravely
disabled person (§ 5350) so that she may receive individualized treatment,
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.href="#_ftn4"
name="_ftnref4" title="">[4]  (§§ 5353, 5358, 6000, subd. (a)(1);
In re Violet C. (1989)
213 Cal.App.3d 86, 91 (Violet C.).)  Following the recent amendments to the
Welfare and Institutions Code, an LPS conservator no longer has authority to
place a conservatee in a state developmental center, but the conservator
retains all other powers regarding the conservatee’s placement.  (§§ 6000, subds. (a) & (c);
7505.)  An LPS conservatorship
automatically terminates after one year unless the conservator successfully
petitions the court to reestablish the conservatorship.  (§§ 5361-5362.)

C.        Judicial Commitments
Under Section 6500 et seq.

Section 6500
authorizes the district attorney, or county counsel if designated by the board
of supervisors, to petition the trial court for an order involuntarily
committing a developmentally disabled person who is a danger to self or
others.  (§ 6500,
subd. (b)(5).)  The petition may be
brought at the request of the parent, guardian, conservator, or other person
charged with the support of the developmentally disabled person, the regional
center director or his or her designee, or several other statutorily designated
individuals.href="#_ftn5" name="_ftnref5"
title="">[5]  (§ 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.)

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.href="#_ftn6"
name="_ftnref6" title="">[6]  (§§ 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 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 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.) 

>Hop did not create a new nonstatutory
means of involuntary judicial commitment or provide authority for confinement
in a state developmental center not otherwise authorized by statute.  (Violet
C., supra, 213 Cal.App.3d at
p. 94.)  Rather, >Hop applied constitutional safeguards to
an otherwise constitutionally infirm statutory scheme and held a person placed
in a state developmental center under section 4825 must receive the same
constitutional safeguards as a gravely disabled person confined under the LPS Act
or as a danger to herself or others under section 6500 et seq.  (Violet
C., at pp. 94-95; Hop, >supra, 29 Cal.3d at pp. 92-94.)

Although
Hop involved a developmentally
disabled adult placed in a developmental center by a parent who was neither her
guardian nor conservator, subsequent cases have found Hop’s analysis and judicial hearing requirement equally applicable
to state hospital placements initiated by a developmentally disabled adult’s
conservator.  For example, in >North Bay Regional Center v. Sherry S.
(1989) 207 Cal.App.3d 449 (Sherry S.),
the Court of Appeal explained:  “The
rationale of Hop is that a
developmentally disabled adult who is putatively unable to consent to the
deprivation of liberty entailed in state hospitalization cannot be so deprived
without a hearing.  For purposes of this
rationale, we see no reason to distinguish between hospitalizations initiated
by parents and those initiated by conservators.”href="#_ftn7" name="_ftnref7" title="">[7]  (Id.
at p. 461; see also Violet C., >supra, 213 Cal.App.3d at
p. 96.)

II

Facts and Procedural History

John
is a 57-year-old, developmentally disabled adult with an estimated IQ of
14.  He suffers a wide variety of medical
conditions that require around-the-clock care, including generalized
nonintractable epilepsy, lipoma, osteopenia, hypothyroidism, hypertension, and
coronary arteriosclerosis.  John cannot
communicate verbally, nor can he tell others when he is experiencing pain or
needs medical attention.  He is fully
ambulatory, but he cannot self-administer the many daily medications he
requires, nor can he provide for his basic personal needs such as food,
shelter, and clothing.  For his own
safety, John requires close supervision because he cannot appreciate basic
safety hazards. 

John
is the oldest of Raymond and Carol’s five children.  In October 1965, Raymond and Carol
voluntarily admitted John to Fairview because they could not safely care for him
at their home.  John has continued to
live at Fairview for the past 47 years. 
Throughout John’s stay at Fairview, Raymond, Carol, and their other
children have remained active in his life. 
Raymond and Carol visit him regularly, participate in events and
activities at Fairview with him, bring him to their home for visits every few
weeks, and include him in all family events and gatherings.

In
1996, the trial court appointed Raymond, Carol, and John’s sister, Andrea, as limited
conservators for John under the Probate Code.href="#_ftn8" name="_ftnref8" title="">[8]  The court granted Petitioners the power “[t]o
fix the residence or specific dwelling of [John] to include >request for placement at a State
Developmental Center,” give or withhold medical consent, and contract on John’s
behalf.  (Italics added.)  The court has investigated and reviewed this
limited conservatorship every two years, but has not found any grounds to
modify or terminate it.

Since
1993 the trial court has annually reviewed John’s placement at Fairview under >Hop and section 4825.  The Harbor Regional Center initiated each of
these annual “Hop reviews” by
requesting court approval for John to remain at Fairview.  Each time the court conducted a >Hop review, it appointed the Public
Defender to serve as John’s attorney and ultimately approved John’s continued Fairview
placement subject to “further judicial review within one (1) year.” 

The
Harbor Regional Center filed its most recent “Hop petition” in September 2010, explaining “there is no known
suitable, legally available placement [for John] that is less restrictive than
the proposed state developmental center placement.”  In response, the court again appointed the Public
Defender to serve as John’s attorney and temporarily approved his continued
placement at Fairview pending a hearing on the Hop petition. 

In
December 2011, while the most recent Hop
petition remained pending, the Public Defender filed a habeas corpus petition
on John’s behalf under section 4800, which provides every adult admitted
to a state developmental center with the right to petition for a hearing on
whether the committee should be released. 
The petition alleged Fairview unlawfully restrained John’s liberty
because it is not the least restrictive placement for him.  The petition sought John’s release from
Fairview, but provided no information explaining why Fairview was not the least
restrictive placement or where John should be placed.  Petitioners opposed the petition on several grounds,
including (1) the petition failed to allege any facts to support its
request for relief; (2) the Public Defender lacked standing to file the
petition without approval from John’s conservators; (3) Fairview is the
least restrictive placement for John; and (4) John’s placement at Fairview
should be reviewed through the Hop
review process, not a habeas corpus petition. 


In
April 2012, the trial court conducted a hearing on Petitioners’ challenges to
the Public Defender’s habeas corpus petition. 
At the hearing, the Harbor Regional Center informed the court it had not
been “actively” pursuing an alternative placement for John, but it “believed”
it could find a “suitable” placement for him if the Court ordered it to do
so.  The Harbor Regional Center, however,
did not identify any facility other than Fairview that could properly care for
John. 

The
trial court rejected all of Petitioners’ challenges and scheduled an
evidentiary hearing on the habeas corpus petition to be followed immediately by
a Hop hearing if it remained
necessary.  Petitioners promptly filed the
current petition for writ of mandate or prohibition in this court, seeking
(1) an immediate stay of trial court proceedings that would determine John’s
placement, and (2) a writ directing the trial court to dismiss the Public
Defender’s section 4800 habeas corpus petition. 
We ordered the Public Defender and Harbor Regional Center to show cause
why mandate should not issue, and stayed all trial court proceedings on the
habeas corpus and Hop petitions.

III

Discussion

A.        The Public Defender May
Not Pursue the Habeas Corpus Petition on John’s Behalf

The
Public Defender filed the habeas corpus petition on John’s behalf under section 4800,
which provides:  “Every adult who is or
has been admitted or committed to a . . . developmental center
. . . as a developmentally disabled patient shall have a right to a
hearing by writ of habeas corpus for his or her release from the . . .
developmental center . . . after he or she or any person acting on
his or her behalf makes a request for release to any member of the staff of the
. . . developmental center . . . or to any employee of a
regional center.”  (§ 4800,
subd. (a).)  The Public Defender
contends it properly filed the habeas corpus petition as a “person acting on
[John’s] behalf.”  We disagree because
the Public Defender failed to establish an appropriate basis for pursuing the petition
and failed to follow section 4800’s statutory procedures.

In
Hop, the Supreme Court addressed
section 4800 and a public defender’s standing to bring a habeas corpus
petition on behalf of a developmentally disabled person who is unable to object
to a developmental center placement.  The
Hop court acknowledged section 4800
authorizes a habeas corpus petition by anyone acting on a developmentally
disabled person’s behalf, but the court also pointed out its habeas corpus
jurisprudence allows someone other than the detained person to bring a habeas
corpus petition “‘[o]nly in very
exceptional circumstances,’” and the petition must “‘“set forth some reason
or explanation . . . showing why the detained person [did] not sign
[the petition] . . . .”’ 
[Citation.]”  (>Hop, supra,
29 Cal.3d at pp. 86-87, original italics.)  Accordingly, although section 4800
authorizes a habeas corpus hearing, a person other than the developmentally
disabled person must establish exceptional circumstances to justify pursuing a
habeas corpus petition on the developmentally disabled person’s behalf because
“‘“[i]t was not intended that the writ of habeas corpus should be availed of,
as a matter of course, by intruders or uninvited meddlers
. . . .  [Citation.]  . . . .”’  [Citation.]” 
(Hop, at p. 87.)

The
Hop court found exceptional
circumstances supported the public defender’s section 4800 habeas corpus
petition.  Those circumstances described
in the petition alleged (1) Hop’s disability deprived her of the “‘ability
to protest her transfer to a more restrictive placement’”; (2) Hop’s
mother initiated the developmental center placement with the concurrence of the
regional center and developmental center staff, and therefore none of them
reasonably could be expected to file a habeas corpus petition challenging their
own actions; and (3) Hop appeared incompetent to initiate or file a habeas
corpus proceeding on her own behalf.  (>Hop, supra,
29 Cal.3d at p. 87.)  In
essence, no means existed for Hop to challenge her transfer to the state
hospital other than the public defender’s habeas corpus petition filed on her
behalf.

The
Supreme Court also has long recognized “habeas corpus is an extraordinary
remedy that ‘was not created for the purpose of defeating or embarrassing
justice, but to promote it’ [citation.] . . . .”  (In re
Robbins (1998) 18 Cal.4th 770, 777‑778.)  Indeed, habeas corpus is not a proper remedy
where other adequate remedies exist, such as an appeal or other available procedures
for challenging the confinement.  (>Gandolfo, supra, 36 Cal.3d at pp. 898-899.)  In Gandolfo,
the Supreme Court held a habeas corpus petition was not an appropriate means to
challenge an LPS conservatee’s confinement in a developmental center because
the LPS Act provided ample means for the conservatee to challenge both the
conservatorship and his developmental center confinement, and the habeas corpus
petition did not allege any extraordinary circumstances rendering those
procedures inadequate.  (>Id. at pp. 897-900.)

Here,
the record shows there are no exceptional circumstances that justify the Public
Defender filing the habeas corpus petition on John’s behalf or show the
remedies otherwise available to address John’s Fairview placement are
inadequate.  Unlike the situation in >Hop, we are not concerned with John’s
initial placement at Fairview for an indefinite period of time without a
judicial hearing.  John has lived at
Fairview for more than 47 years.  Since
at least 1993, John has been placed at Fairview under a series of one-year
placements subject to annual judicial reviews. 
The most recent of these Hop
reviews was pending and set for hearing when the Public Defender filed the
habeas corpus petition.  As explained
above, the Hop review process assures
John not only representation by counsel but also a jury trial and application
of the beyond reasonable doubt standard of proof on the scope of his disabilities
and whether his disabilities warrant his developmental center placement.  The Public Defender provides no explanation
why the pending Hop review is an inadequate
means for evaluating John’s Fairview placement.

To
the contrary, the Public Defender suggested a habeas corpus petition under
section 4800 provides a means to circumvent the Hop review process.  The
Public Defender argued in the trial court that section 4800 authorized it
to file the habeas corpus petition and allow the trial court to decide whether John’s
Fairview placement remained appropriate, rather than go through the >Hop review process and present that
issue to a jury.  This argument turns the
function and purpose of habeas corpus on its head.  As explained above, habeas corpus is
appropriate only when there are no other available and adequate remedies; it
may not be used to avoid otherwise available and adequate remedies.href="#_ftn9" name="_ftnref9" title="">[9]  (Gandolfo,
supra, 36 Cal.3d at
pp. 898-899.)

Moreover,
unlike Hop, John has court-appointed
conservators who are authorized to act on his behalf in selecting his residence.  (See Michael
K., supra, 185 Cal.App.4th at
p. 1128, fn. 14 [exceptional circumstances did not exist to allow public
defender to pursue section 4800 habeas corpus petition because developmentally
disabled person had court-appointed conservators who were competent and
authorized to decide whether the person should remain in a state developmental
center].)  The Public Defender and Harbor
Regional Center contend there is evidence that John’s conservators are
preventing the Harbor Regional Center from determining whether there is a less
restrictive placement that would meet John’s needs, and therefore we may not
rely on the conservators’ involvement to conclude the Public Defender lacks
authority to pursue the habeas corpus petition. 
We disagree.

Neither
the Public Defender nor Harbor Regional Center cites any evidence in the record
showing John’s conservators prevented the regional center from fully assessing
John and his needs or otherwise identifying any less restrictive placements.  The Harbor Regional Center argues it cannot
identify other possible placements for John without his conservators’ cooperation
because it may not disclose confidential information about John to potential
service providers without their consent. 
(See generally § 4514.)  But
section 4514 includes numerous exceptions to the consent requirement,
including disclosure to “qualified professional persons . . . in the
provision of intake, assessment, and services or appropriate referrals.”  (§ 4514, subd. (a).)  Consent is required only when disclosure is
made to “a program not vendored by a regional center or developmental
center.”  (Ibid.)  The Harbor Regional
Center cites no evidence showing John’s conservators can or have thwarted the
placement process through lack of cooperation.

We
do not suggest that a Probate Code conservator’s involvement in a
developmentally disabled person’s placement bars a public defender from
pursuing a habeas corpus petition on the person’s behalf whenever the
conservator objects.  Rather, we merely
conclude the conservator’s involvement is a
factor the court may consider in determining whether exceptional circumstances justified
the public defender’s section 4800 habeas corpus petition.  (See Michael
K., supra, 185 Cal.App.4th
at p. 1123, fn. 8 [public defender may act contrary to conservator’s
instructions in extraordinary circumstances].) 
For example, if there was evidence showing the conservator failed to act
in the developmentally disabled person’s best interests or prevented a proper
assessment or identification of possible community‑based services, the
court could consider those circumstances in deciding whether exceptional
circumstances exist.  Here, the Public
Defender failed to show either extraordinary circumstances or that other
remedies were inadequate.

The
Public Defender also may not pursue the current habeas corpus petition because
he failed to follow the procedures mandated for a section 4800 habeas corpus
petition.  Section 4800,
subdivision (a), grants every adult admitted or confined in a state
developmental center or other identified facility the right to a habeas corpus
hearing after the adult or someone acting
on his or her behalf makes a request for release to a facility staff member or
a regional center employee.  Upon
receiving the request, the staff member or regional center employee must promptly
(1) provide the person making the request a written request for release
form for the person to sign,href="#_ftn10"
name="_ftnref10" title="">[10]
and (2) deliver a copy of the signed request to the director or
administrator of the facility from which release is sought.  (§ 4800, subd. (b).)  The director or administrator must then
notify the trial court of the request and transmit a copy to the adult’s parent
or conservator.  (Ibid.)  The adult or person
acting on his or her behalf must then prepare and file a habeas corpus petition
with the court, and counsel must be appointed to assist the adult if he does
not already have counsel.  (§ 4801,
subds. (a) & (b).)  Here, the Public
Defender failed to request John’s release to any Fairview staff member or
regional center employee and no written request was submitted to anyone at
Fairview or the regional center.  Instead,
the Public Defender bypassed the statute’s preliminary steps and simply filed
the habeas corpus petition with the trial court.  The Public Defender provides no authority or excuse
justifying its failure to follow the statutory procedures.  (See Sherry
S., supra, 207 Cal.App.3d at
p. 461 [statutory procedures regarding developmental center placements
under section 4825 must be followed].)

The
Public Defender argues section 4800 and Hop authorize it to file a habeas corpus petition any time a
developmentally disabled person placed in a state developmental center or other
facility is incapable of filing a petition on her own behalf.  The Public Defender reads these authorities
too broadly.  As explained above, >Hop authorized a public defender to
pursue a habeas corpus petition on Hop’s behalf because there was no one else
to do so and no other means to obtain an independent review of Hop’s state
hospital placement.  At the time, the
right to a judicial hearing or any other remedy did not exist.  Hop
nonetheless requires “‘very exceptional
circumstances’” for a public defender or anyone other than the detained
person to file a section 4800 habeas corpus petition, and the writ petition
must allege facts establishing those circumstances.  (Hop,
supra, 29 Cal.3d at
pp. 86-87, original italics.)  A
public defender simply may not pursue a section 4800 habeas corpus
petition as a matter of course. 

The
Public Defender contends In re Borgogna
(1981) 121 Cal.App.3d 937, supports its interpretation of section 4800
and Hop.  Borgogna
declared a public defender has standing to pursue a habeas corpus petition on a
developmentally disabled person’s behalf if the person is not competent to do
so.  (Borgogna,
at p. 945.)  This statement,
however, is dicta.  (Ibid.)  In >Borgogna, the public defender joined
with the regional center in bringing an earlier habeas corpus petition, but the
trial court denied the petition because it was not filed by the developmentally
disabled person, who was competent and opposed the petition.  The issue in Borgogna concerned a later petition the regional center filed on
its own in the Court of Appeal.  (>Borgogna, at p. 940.)  The Borgogna
court found the regional center could pursue the petition because the statutory
scheme vested it with authority to decide the disabled person’s placement and
therefore the center could defend its own placement decision.  The Borgogna
court did not analyze or consider the public defender’s authority to pursue a
habeas corpus petition nor did it discuss Hop’s
very exceptional circumstances requirement. 
(Id. at p. 946.)  An opinion is not authority for issues it did
not consider or decide.  (>People v. Knoller (2007) 41 Cal.4th
139, 154-155; People v. Dunbar (2012)
209 Cal.App.4th 114, 118.)  We
therefore find Borgogna inapplicable.

We
note the trial court appointed the Public Defender to serve as John’s counsel
for the pending Hop review.  Assuming that appointment would otherwise
authorize the Public Defender to file a habeas corpus petition on John’s behalf,
it does not authorize the Public Defender to pursue the current petition.  As explained above, the record does not show
the pending Hop review is an
inadequate remedy for testing the validity of John’s placement at Fairview and
the Public Defender failed to follow the appropriate procedures for pursuing a
habeas corpus petition under section 4800. 
Accordingly, the Public Defender may not pursue the current habeas
corpus petition on John’s behalf.

B.        The Trial Court Retains
Jurisdiction to Review John’s Fairview Placement

Petitioners
contend the trial court lacks jurisdiction to conduct Hop hearings to review John’s ongoing Fairview placement because
the Hop decision did not create
ongoing jurisdiction for the trial court to hear challenges to placement
decisions or otherwise review existing placements.  According to Petitioners, the Lanterman Act’s
fair hearing process is the exclusive means for deciding challenges concerning
John’s Fairview placement.  This argument
fails because it ignores the terms of the court orders approving John’s
placement at Fairview and the limited purpose of periodic Hop reviews.href="#_ftn11"
name="_ftnref11" title="">[11]

>Hop held a developmentally disabled
person’s due process and equal protection rights prohibit the person from being
confined in a state developmental center under section 4825 without an
initial judicial determination regarding the person’s disability and whether
the placement was warranted.  (>Hop, supra,
29 Cal.3d at pp. 92‑93.) 
The fact John was placed in Fairview several years before the Supreme Court
announced its Hop decision in no way affects
his right to have his Fairview placement reviewed under the standards >Hop established.  As the Hop
court pointed out, its requirement of a hearing and other procedural rights it
established to make a developmental center placement under section 4825
constitutional applied not only to Hop and all developmentally disabled persons
placed in a developmental center after the Hop
decision, but also to all persons who resided in a developmental center under a
section 4825 placement when the Supreme Court announced its decision.  (Hop,
at p. 94 [“Our holding does not require the immediate release either of
Hop or of those presently held in state hospitals under the authority of
section 4825”].)

Here,
the initial judicial determination regarding John’s Fairview placement occurred
in 1993.  At that time, the trial court
approved John’s placement subject to “further judicial review within one (1) year.”  Since then, John has remained at Fairview
under a series of court orders approving his placement subject to annual judicial
reviews.  Every court order approving the
placement reserved jurisdiction for the court to do so.  Indeed, each time John’s Fairview placement
came up for review, it was essentially a new placement requiring judicial
review under Hop regardless of
whether the trial court had continuing jurisdiction because the authorization
for the previous placement had expired.  No
one disputes the trial court’s authority to approve John’s Fairview placement
for a limited time subject to further judicial review, and therefore this
challenge to the trial court’s jurisdiction to review the placement fails.

We
nonetheless consider whether Hop
itself provides the trial court with authority to periodically review John’s placement
to determine whether his disabilities continue to justify placement in a
developmental center.  Although >Hop addressed only a developmentally
disabled person’s initial placement, we find its rationale for requiring
judicial review equally applicable to the committee’s ongoing placement.  As explained above, Hop found a developmentally disabled person’s initial placement
without a judicial hearing violated the person’s due process and equal
protection rights because it significantly impairs the person’s fundamental
right to personal liberty, and no other class of similarly situated adults may
be placed in a developmental center without a judicial determination that the
placement is appropriate.  (>Hop, supra,
29 Cal.3d at pp. 89-92.) 

The
impairment of the committee’s personal liberty is not diminished by residing in
the developmental center for an extended period of time, especially when there
are continuing advancements in both the treatment of numerous disabilities and
the availability of less restrictive services in community-based and other
facilities.  No other class of similarly
situated adults may lawfully remain in a state developmental center
indefinitely without further judicial review of their ongoing placement.  For example, the LPS Act and
section 6500 et seq. place limits on the length of confinement for a
gravely disabled person or a person believed to be a danger to self or others,
and both statutory schemes also require judicial review to recommit the person
or extend the initial confinement.  (See,
e.g., §§ 5150, 5250, 5260, 5270.15, 5300, 5304, subd. (b) [limiting
LPS confinements to 72 hours, 14 days, 30 days, or 180 days
depending on person’s condition]; §§ 5256, 5256.1, 5262, 5270.15, 5275,
5276, 5301, 5302, 5303 [requiring a court or certified hearing officer to
review all LPS confinements except initial 72-hour confinement and all
extensions or recommitments]; §§ 6500, subd. (c)(2), 6502, 6503
[limiting commitments to six months and requiring judicial hearing for initial
commitment and any extension or recommitment].) 


The
Lanterman Act does not limit the length of a section 4825 placement or require
judicial review of the placement. 
Accordingly, unless Hop requires
a further judicial review of a section 4825 placement, John and others
similarly situated could face a lifetime placement in a developmental center
based solely on an initial judicial determination regarding the placement’s
suitability.  We see no basis to justify
the lifetime placement of a nondangerous developmentally disabled person under
section 4825 based solely on an initial judicial review.  Petitioners do not adequately explain why the
Legislature under the LPS Act and section 6500 et seq. limited the commitment time
of a dangerous developmentally disabled person or a gravely disabled person
placed in a developmental center and also guaranteed those individuals further
judicial review, but omitted those protections for section 4825 placements.  That result is simply inconsistent with the
constitutional principles articulated in Hop.href="#_ftn12" name="_ftnref12" title="">[12]

Petitioners
contend John and other developmentally disabled persons placed in a
developmental center are not similarly situated to other developmental center residents
because section 4825 admittees voluntarily agree to the placement.  According to Petitioners, persons placed
under section 4825 are free to leave the developmental center any time they
or their legal representatives choose, unlike those persons placed under the
LPS Act, section 6500 et seq., or other statutory provisions.  Hop,
however, rejected this identical argument. 
As explained above, Hop found
developmentally disabled persons are incapable of objecting to their placement
because of their disability and therefore are not voluntary admittees.  A person may not be considered a voluntary
admittee under section 4825 unless he or she is competent to request or
consent to the placement.  (>Hop, supra,
29 Cal.3d at pp. 90-92.)  Appointing
a conservator for the developmentally disabled person does not change that
conclusion; the placement remains involuntary and a judicial hearing is
required.  (Sherry S., supra,
207 Cal.App.3d at p. 461; Violet
C., supra, 213 Cal.App.3d at
p. 96.)  As Hop explained, the well intentioned efforts of a person’s
representative to act in the person’s best interests “‘cannot . . .
detract in any way from [the person’s] right to procedures that will protect
him from arbitrary curtailment of his liberty interest . . . .’  [Citations.]” 
(Hop, at p. 93; see also >Capitol People, supra, 155 Cal.App.4th at p. 699 [“under the Lanterman
Act it is the individual with a developmental disability—not his or her family,
friends, or conservator—who is afforded all the legal rights and
responsibilities guaranteed by the United States and California Constitutions.  [Citation.]  No matter how well intentioned parents and
conservators may be, they cannot exert their influence to curtail or deny the
due process rights of persons with developmental disabilities”].)

We
acknowledge Michael K. and >Whitley concluded Hop did not provide “ongoing jurisdiction in the superior court to
hear challenges to placement decisions or simply review existing placements,”
explaining that “‘[t]he due process concerns for retention in a development[al]
center are not the same due process concerns that are present when a
developmentally disabled individual is first involuntarily committed.’”  (Michael K.,
supra, 185 Cal.App.4th at
pp. 1127-1129; Whitley, >supra, 155 Cal.App.4th at
pp. 1465‑1466.)  As authority
for that proposition, Michael K. and >Whitley cite Cramer v. Gillermina R. (1981) 125 Cal.App.3d 380, 393 (>Cramer), without any analysis of that
decision.  Upon examination, >Cramer does not support their
conclusion.

>Cramer involved petitions to recommit
several individuals to a state developmental center because the original orders
committing them under section 6500 et seq. were expiring.  Following ex parte hearings on each petition,
the trial court temporarily extended the commitment orders pending full
recommitment hearings.  The committees
challenged these temporary extensions, arguing they were constitutionally
entitled to adversarial probable cause hearings before they could be
temporarily held beyond their original commitments.  (Cramer,
supra, 125 Cal.App.3d at
pp. 384-385, 392.)  The committees
cited Hop to support their position,
but Cramer found Hop inapplicable because it did not address due process concerns
arising from a recommitment under section 6500 et seq.  (Cramer,
at p. 393.) 

>Cramer is inapplicable here for the same
reason—it addresses a different type of confinement based on different
authority.  At the time,
section 6500 et seq. authorized a one-year judicial commitment for
developmentally disabled persons who were a danger to themselves or
others.  After one year, the commitment
order automatically expired and the committee would be freed unless the district
attorney petitioned for a recommitment order. 
Without periodic Hop reviews a
developmentally disabled person could be placed in a developmental center under
section 4825 for the remainder of her life based only on an initial judicial
review.  Consequently, >Cramer does not support the conclusion
that the due process concerns regarding retention in a state developmental
center under section 4825 are different than the due process concerns
regarding the initial section 4825 placement.

Moreover,
in Cramer, the individuals received
judicial hearings before the court
made the temporary hold orders and the individuals were entitled to appear at
those hearings and oppose the orders. 
Those hearings were not full adversarial hearings with the right of
cross-examination and other formal hearing rights, but they were judicial
hearings addressing the suitability of the temporary hold orders.  (Cramer,
supra, 125 Cal.App.3d at pp. 392-393.)  The Cramer
court also emphasized that the challenged orders were merely temporary pending
a full judicial hearing where the committee would receive all formal hearing
rights:  “Undoubtedly, our holding would
be different if there were no available subsequent judicial hearing to test the
recommitment.”  (Id. at p. 392.) 
Accordingly, Cramer held due
process requires a judicial hearing before a recommitment and therefore does
not support the conclusion the trial court has no ongoing jurisdiction to
review a section 4825 placement after the court initially approves the
placement.

We
note two additional reasons why Michael
K. and Whitley do not deprive the
trial court of jurisdiction to conduct periodic Hop reviews.  First, neither
decision addressed Hop’s equal
protection rationale for requiring ongoing jurisdiction to review a
developmental center placement.  Second,
neither decision involved a periodic Hop
review regarding an ongoing developmental center placement.  Instead, both Michael K. and Whitley
involved attempts to circumvent the Lanterman Act’s administrative fair hearing
procedures by arguing Hop created
ongoing jurisdiction for courts to hear challenges to specific placement
decisions or otherwise review all aspects of any Lanterman Act placement.  (Michael
K., supra, 185 Cal.App.4th
at pp. 1116-1117, 1127; Whitley,
supra, 155 Cal.App.4th at
p. 1465.)

Our
reading of Hop is not inconsistent
with Michael K.’s and >Whitley’s conclusion that >Hop does not provide the trial court
with ongoing jurisdiction to hear challenges to specific placement decisions
and review all aspects of existing
placements.  We read Hop simply to confer jurisdiction on the trial court to
(1) conduct a hearing regarding the basis for initially placing a
developmentally disabled person in a developmental center, and
(2) periodically review whether the person’s disabilities continue to
support the significant restrictions the placement imposes on the committee’s
liberty interests.  This jurisdiction to
periodically review the basis for a developmental center placement is not
jurisdiction to monitor the ongoing placement or make decisions regarding the
details of the services the developmentally disabled person receives.href="#_ftn13" name="_ftnref13" title="">[13] 

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