North Bay Regional Center v. Maldonado

The Legislature, in relevant provisions of the Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4500 et seq.)^[1] (hereafter the Lanterman Act), details the rights and relief available to a legal representative, such as Maldonado acting as Whitley’s conservator, who believes a placement decision has been proposed that is not in her conservatee’s best interests. Those statutory provisions direct that a legal representative’s objection to a proposed community placement is to be resolved by an administrative fair hearing procedure followed by superior court review if the conservator, or another party, remains dissatisfied with the result. (§§ 4803, 4712.5, subd. (a).) Maldonado’s attempt to invoke that statutory fair hearing remedy was improperly thwarted by NBRC’s insistence on a judicial hearing in superior court as contemplated in the settlement of an unrelated federal case, Richard S. v. Department of Developmental Services (U.S. Dist. Ct., C.D. Cal., So. Div., Aug. 29, 2000, No. SACV97-219GLT (ANX)) (the Richard S. settlement).

We conclude the Richard S. settlement did not authorize the parties here to bypass the statutorily prescribed administrative fair hearing procedure. In these circumstances, we find that it was the intent of the Legislature to supersede all common law remedies with those provided for in the Lanterman Act. Therefore, the only means by which Maldonado, as a conservator, could object to NBRC’s community placement decision was by invoking the statutorily authorized administrative fair hearing provisions of the Lanterman Act. Because Maldonado was improperly denied that administrative review, we reverse and remand so that the community placement planning process may be recommenced. If that process results in a decision to which Maldonado objects, she should be afforded her statutory right of review by an administrative fair hearing followed, if necessary, by court review. (See Code Civ. Proc., § 1094.5 [providing judicial review of final administrative proceedings].)

FACTS

Whitley is a nearly 55-year-old severely developmentally disabled adult. He suffers from epilepsy, mild cerebral palsy and profound mental retardation caused by microcephaly. He cannot speak coherently, nor can he tell others when he is experiencing pain or needs medical attention. He requires some assistance to perform routine tasks such as bathing, dressing, grooming, and toileting at night. For his own safety, he must be closely supervised when outdoors in unfamiliar areas because he is unaware of hazards. He is

described as “quite the ‘ladies man’ ” and someone who is “overly affectionate and friendly towards strangers[,] . . . attempting] to pat people on their behinds and or give kisses on their face, shoulder or a person’s back.” He can also be “strong-willed” and “resistive to following instructions . . . .”

Whitley lived with his family until 1960, when he was seven years old. At that point, his mother could no longer care for him due to his maladaptive behaviors and the other demands of her large family, and she had him admitted to Sonoma State Hospital (now SDC), an institution operated by the State Department of Developmental Services (DDS). Whitley lived at the SDC for the next 23 years.

In 1983, Whitley was moved from the SDC to a community facility. That same year, appellant was appointed Whitley’s conservator. Approximately eight years later, in 1991, Whitley exhibited behavioral problems, including property damage, vocal disruption, incontinence, and aggression toward his peers, that resulted in Whitley’s readmission to the SDC. When Whitley returned to the SDC in 1991, he initially lived in a locked residence known as Lathrop Cottage. In approximately 2001, Whitley moved into an unlocked residence known as Brent Cottage. While changes have been extremely difficult for Whitley, he has shown improvement in this area. For example, Whitley has successfully adapted to numerous changes to his daily routine at SDC, such as the move from Lathrop Cottage to Brent Cottage, working onsite at the SDC folding laundry, and interacting with new staff members as turnover occurred.

For more than 20 years, Maldonado has been Whitley’s conservator, concerned with his care and welfare. A staff report notes that because Whitley is unable to give informed consent for treatment, he “depends upon his sister/conservator to do so on his behalf.” She has participated fully as a member of his interdisciplinary team (IDT)^[2] and has participated in Whitley’s annual individual program plan (IPP) reviews.^[3] She and Whitley’s other relatives have maintained close contact with Whitley, giving him family

Maldonado continued to voice her objection to the IDT’s decision to place Whitley at Miracle Lane. Thereafter, the DBS (through the SBC) provided Maldonado with the documentation required under the settlement reached in Richard S., an unrelated federal action. As explained more fully in a later part of this opinion, the Richard S. settlement dictates the procedures to be followed when a member of the consumer’s IBT objects to a community placement decision. The Richard S. documentation sent to Maldonado expressly stated family members had “a forum for expressing their disagreement [with the community placement decision]” and if they wished to do so, they could file “a Request for Hearing Concerning Community Placement.” Maldonado filled out the necessary paperwork, requesting a hearing to review the IBT’s recommendation that Whitley be placed in a community setting.

Under the terms of the Richard S. settlement, the BBS must notify the superior court that has jurisdiction over the consumer’s commitment of the IBT member’s objection to community placement, and it remains within the court’s discretion whether to hold a hearing or let the proposed community placement proceed.

On August 25, 2005, before a Richard S. hearing occurred, Maldonado also requested an administrative fair hearing under the Lanterman Act. The Office of Administrative Hearings then made several requests that Maldonado provide proof that she was Whitley’s conservator. After Maldonado finally provided that proof, the Office of Administrative Hearings scheduled a hearing for April 21, 2006.

In November 2005, the court held a two-day Richard S. hearing.^[4] At this hearing, Maldonado proffered evidence showing that transitions can be difficult for Whitley and that Miracle Lane is in a residential neighborhood on a busy street rather than in a rural setting, which Maldonado thought might raise safety problems. Whitley’s family members also believed that if he were living at Miracle Lane, it would be difficult for them to visit him as often as they do at the SBC. Maldonado testified that she “remembered his experience when he was out in the community before, which was not successful” and that she “did not want to go through that again.” Whitley’s family members were joined by Whitley’s attorney in expressing their desire that he remain at the SBC where he was happy and secure.

In response to these objections, NBRC presented testimony from persons who had worked closely with Whitley who believed he was capable of making the transition to a community placement, and who believed he

deserved a chance, given the benefits of moving him into a less restrictive community setting. NBRC’s attorney argued, “maybe it won’t work out. . . . And if it doesn’t work out, he can go back to the [SDC].”

The transcript reveals the court had to create a Richard S. proceeding out of whole cloth, making many ad hoc legal determinations during the course of the hearing, such as establishing the burden of proof, identifying the key issues, and setting the standard of review. In articulating the applicable legal principles, the superior court characterized its review of the IDT’s community placement decision as asking whether the IDT had abused its discretion. Thus, the court concluded that an IDT’s determination that community placement provides the least restrictive appropriate environment should be upheld “ ‘unless it could be clearly demonstrated to be erroneous,’ ” and the objector has the burden of establishing that the recommendation should not be followed.

Against this procedural backdrop, the superior court found Maldonado had not carried the burden required to overturn the IDT’s recommendation that Whitley be moved to Miracle Lane. However, the superior court retained jurisdiction and established a schedule to review and monitor Whitley’s placement. The court ordered the NBRC to notify the court within 72 hours of Whitley’s move to the community facility and that a hearing be held 30 to 45 days thereafter. The court also ordered the NBRC to make arrangements for Whitley to make monthly visits, at a minimum, with his family in Sonoma County.

Maldonado filed her notice of appeal from the superior court’s ruling on February 6, 2006.^[5] On April 13, 2006, the NBRC requested dismissal of the administrative fair hearing on the ground that “[t]he issue of Roy Whitley’s placement is currently before the [C]ourt of [Ajppeal.” Maldonado did not oppose the request to dismiss, which the Office of Administrative Hearings granted.

After Maldonado filed this appeal, Whitley was moved to Miracle Lane in Fairfield. This court granted Maldonado’s petition for writ of supersedeas and issued an order staying enforcement of the superior court’s ruling to maintain

the status quo pending the resolution of this appeal. Consequently, Whitley was returned to the SDC and, to our knowledge, currently resides there.

DISCUSSION

A. Overview

In briefing this appeal, we asked the parties to focus on whether the superior court had the authority to conduct a “Richard S.” hearing in the first instance, given that an administrative fair hearing procedure specifically targeting the kind of dispute now before us was contained in the Lanterman Act.^[6] We have considered the views of the parties, as well as numerous amici curiae, applying a de novo standard of review on the question of whether or not this case was properly before the superior court. (See Emeryville Redevelopment Agency v. Horeros Pigments, Inc. (2002) 101 Cal.App.4th 1083 , 1095 [ 125 Cal.Rptr.2d 12 ] [application of statutory provisions to undisputed facts presents a question of law].) The Supreme Court has justified consideration of a new issue on appeal for the first time “when the issue posed is purely a question of law based on undisputed facts, and involves important questions of public policy. [Citations.]” (Fisher v. City of Berkeley (1984) 37 Cal.3d 644 , 654-655, fn. 3 [ 209 Cal.Rptr. 682 , 693 P.2d 261 ].) Both of these factors are present here.

B. The Richard S. Settlement

The Richard S. case was spawned in the face of the massive transfer of developmental center residents into the community by DDS and the regional centers in the mid-1990’s. (See Richard S. v. Dept. of Developmental Services (9th Cir. 2003) 317 F.3d 1080 , 1083-1084.) The complaint in Richard S. alleged that, in an effort to hasten the discharge of developmental center residents into the community, DDS and the regional centers engaged in “ ‘client shopping,’ ” where community group home owners would walk through developmental centers and select residents for placement in the community. (Id. at p. 1084.) It was alleged that DDS and the regional centers targeted residents who lacked a guardian or conservator who might object to

for claimants who wish to attempt to resolve the issue through a voluntary informal meeting or through voluntary mediation before proceeding to an administrative fair hearing. (§§ 4710.5, subd. (a), 4710.6, subds. (a), (b), 4710.7, 4710.8, 4710.9, 4711.5.)

The recipient of services or his or her representative must make the request for a fair hearing in writing on a form provided by the service agency and direct the request to the director of the service agency within 30 days after notification of the disputed decision or action.^[7] (§ 4710.5, subds. (a), (b), (d).) Upon receipt of a hearing request, the service agency director shall immediately provide notice of the claimant’s rights in connection with the fair hearing. (§§ 4710.6, subd. (a), 4711.) An administrative fair hearing must be held within 50 days of receipt of the request for a fair hearing. (§ 4712, subd. (a).) If a good cause continuance is granted, for any of the five reasons enumerated in the statute, the granting of the continuance cannot extend the time period for rendering a final administrative decision beyond a 90-day period. (§ 4712, subd. (a).)

The DDS is required to “contract for the provision of independent hearing officers” to conduct the hearing. (§ 4712, subd. (b).) The hearing officer is required to have special training in the law applicable to the developmentally disabled and the services available to them and the law of administrative hearings. (§§ 4710.5, subd. (a), 4712, subd. (b).) The agency awarding the contract for independent hearing officers “shall biennially conduct, or cause to be conducted, an evaluation of the hearing officers who conduct” administrative fair hearings. (§ 4712, subd. (n).)

At least five calendar days prior to the hearing, the claimant and the service agency shall exchange a list of potential witnesses, the subject matter of their testimony, and copies of documentary evidence. (§ 4712, subd. (d).) At the fair hearing, which “need not be conducted according to the technical rules of evidence,” a claimant has “[t]he opportunity to be present in all proceedings and to present written and oral evidence”; “[t]he opportunity to confront and cross-examine witnesses”; “[t]he right to appear in person with counsel or other representatives of his or her own choosing”; “[t]he right to an interpreter”; and “[t]he right to access to records.” (§§ 4712, subd. (i), 4701, subd. (f).) Absent good cause, the service agency presents its witnesses and all other evidence first and then the claimant presents his or her case. (§ 4712, subd. (j).) A recording shall be made of the proceedings at public expense. (§ 4712, subd. (k).)

Within 10 working days of the fair hearing, the hearing officer must “render a written decision” containing “a summary of the facts, a statement of

decision maker an opportunity to apply his or her expertise, both of which assist later judicial review if necessary. (Sierra Club, supra, at p. 501; Westlake, supra, at p. 476.)

When viewed in the light of the doctrine of exhaustion of administrative remedies, the conclusion is inescapable that the superior court lacked jurisdiction to conduct a Richard S. hearing on the propriety of Whitley’s community placement. We emphasize that this rule is not a matter of judicial discretion, it is a matter of jurisdiction. “ ‘The administrative tribunal is created by law to adjudicate the issue sought to be presented to the court. The claim or “cause of action” is within the special jurisdiction of the administrative tribunal, and the courts may act only to review the final administrative determination. If a court allowed a suit to be maintained prior to such final determination, it would be interfering with the subject matter jurisdiction of another tribunal. Accordingly, the exhaustion of an administrative remedy has been held jurisdictional in California.’ [Citations.]” (Lopez v. Civil Service Com. (1991) 232 Cal.App.3d 307 , 311 [ 283 Cal.Rptr. 447 ]; see Campbell v. Regents of University of California (2005) 35 Cal.4th 311 , 321 [ 25 Cal.Rptr.3d 320 , 106 P.3d 976 ]; California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133 , 1151 [ 43 Cal.Rptr.2d 693 , 899 P.2d 79 ]; Sierra Club, supra, 21 Cal.4th 489 , 495-496.)^[8]

E. Waiver of Administrative Fair Hearing Rights

The NBRC alternatively claims that even if Maldonado retained fair hearing rights under the Lanterman Act, she waived those rights when she submitted her request for a Richard S. hearing, and by not objecting to the later dismissal of her request for an administrative hearing. However, the NBRC overlooks that, in disregard of the mandate of the administrative fair hearing procedure set out in the Lanterman Act, Maldonado was instructed by NBRC that a Richard S. hearing in the superior court was the appropriate forum for her to raise her disagreement with the decision to place Whitley at Miracle Lane. Furthermore, the Office of Administrative Hearings ultimately dismissed Maldonado’s request for an administrative fair hearing under the Lanterman Act based on NBRC’s argument that the matter had been resolved by the Richard S. hearing in the superior court.

Lane. The due process concerns for retention in a development center are not the same due process concerns that are present when a developmentally disabled individual is first involuntarily committed. (See Cramer v. Gillermina R. (1981) 125 Cal.App.3d 380 , 393 [ 178 Cal.Rptr. 69 ] [holding that a full judicial adversarial hearing was not required before issuing an interim order to hold mentally retarded individuals pending a judicial recommitment hearing].)^[9] Accordingly, the expansion of remedies beyond those provided in the fair hearing statute does not come as a natural evolution of Hop—it is in derogation of the express will of the Legislature in establishing a fair hearing procedure.

G. Conclusion

NBRC devotes a significant amount of briefing assuring us that the superior court made the correct decision in upholding the decision to place Whitley in a community facility, and that Maldonado’s objections to this placement are unfounded. Even if we agreed with NBRC’s conclusion, an issue we do not resolve, we would still have no choice but to reverse this judgment.

We must also resist amici curiae’s call for us to adopt the streamlined procedure set out in the Richard S. settlement because it is far preferable to the “futile and time-consuming” remedy provided by the Legislature which could “delay the individual’s move to the community indefinitely.” Once again, even if we agreed that immediate judicial access for all of these parties might be desirable, the Legislature, in promulgating the fair hearing procedures of the Lanterman Act, has struck a different balance, requiring that administrative remedies be exhausted before judicial review takes place. Having made that determination, respect for the legislative prerogative in lawmaking requires that we not interfere with these enactments where disagreement is founded only on policy considerations and the legislative scheme employs reasonable means to effectuate a legitimate objective. Simply put, we may not craft a remedy where the Legislature intends no remedy to exist. If the administrative fair hearing procedure is not functioning in the best interest of the developmentally disabled, a legislative solution to correct the deficiencies should be pursued. We have “ ‘no power to rewrite the statute so as to make it conform to a presumed intention which is not