In re Michelle K. CA4/3

Filed 4/28/16 In re Michelle K. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

In re MICHELLE K., a Developmentally
Disabled Person.
HARBOR DEVELOPMENTAL
DISABILITIES FOUNDATION, etc.,
G051177
Petitioner and Respondent,
(Super. Ct. No. A169658)
v.
OPINION
GEORGE K.,

Objector and Appellant.

Appeal from an order of the Superior Court of Orange County, Gerald G.
Johnston, Judge. Affirmed.
Locke Lord, Jon L. Rewinski and Matthew B. Nazareth for Objector and
Appellant.
Enright & Ocheltree, Judith A. Enright, Julie A. Ocheltree and Noelle V.
Bensussen for Petitioner and Respondent.
 Suzanne Davidson, under appointment by Court of Appeal, for Michelle K.
* * *
Michelle K.1 is a 54-year-old, developmentally disabled person who has
resided at Fairview Developmental Center (Fairview) for more than 40 years. Since the
early 1990’s, the trial court has authorized Michelle’s Fairview residence based on a
series of placements under the Lanterman Developmental Disabilities Services Act
(Lanterman Act; Welf. & Inst. Code, § 4500 et seq.).2 The Harbor Regional Center
initiated each of these placements by petitioning for court approval, and Michelle’s
conservator, George K., supported the ongoing placement. This is the second time we
have been called upon to determine whether the trial court periodically must review
whether to continue Michelle’s ongoing placement at Fairview.
In our previous opinion, we concluded Michelle had a due process right to
periodic judicial review of her Fairview placement because confinement in a state
developmental center, which is the most restrictive environment available under the
Lanterman Act, constitutes a significant restraint on her personal liberty. We also
concluded Michelle’s equal protection rights required periodic judicial review because
other adults placed in similar protective custody under other statutory schemes have the
right to periodic judicial review of their confinement. We therefore issued a writ of
mandate directing the trial court to conduct a hearing on the Harbor Regional Center’s
most recent petition seeking court approval of Michelle’s ongoing Fairview placement.

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

2
 On remand, however, the Harbor Regional Center requested to dismiss its
petition before the trial court conducted a hearing. The Harbor Regional Center
explained since it originally filed the petition over three years earlier it had determined a
less restrictive placement could meet Michelle’s needs. George opposed the dismissal
because he believed Fairview remained the least restrictive facility capable of caring for
Michelle, and the Harbor Regional Center had not identified another specific facility
capable of doing so. Finding Michelle’s Fairview placement could not be maintained
without the Harbor Regional Center’s approval, the trial court granted the dismissal
request and George appealed.
We affirm. Our previous opinion required judicial review for the limited
purpose of determining whether Michelle’s disabilities continued to justify the restraint
on her personal liberty inherent in her ongoing developmental center placement. As a
constitutional safeguard, we required an independent judicial review to ensure the
statutory scheme authorizing the ongoing placement did not allow the Harbor Regional
Center and George to indefinitely confine Michelle in Fairview.
After the Harbor Regional Center withdrew its support for Michelle’s
ongoing placement at Fairview, however, judicial review no longer was necessary
because the Lanterman Act does not permit Michelle to remain at Fairview without the
Harbor Regional Center’s approval. The Harbor Regional Center’s decision to withdraw
its placement petition transformed this matter from an independent review of the ongoing
placement’s constitutionality into a dispute between George and the Harbor Regional
Center over the least restrictive placement capable of meeting Michelle’s needs.
It is well established the Lanterman Act’s administrative fair hearing
process provides the exclusive forum for resolving a dispute over whether a
developmentally disabled person should remain in a development center or transition into
a less restrictive community-based facility. Judicial review may be sought only after the
parties have exhausted their administrative remedies. Our earlier decision did nothing to

3
change this basic rule. The nature and purpose of the periodic judicial review we
required to ensure the constitutionality of Michelle’s placement differs greatly from the
dispute resolution hearing under the fair hearing process.
George therefore must invoke the fair hearing process to challenge the
Harbor Regional Center’s decision to transfer Michelle to a specific community-based
facility, and he may obtain judicial review only after that process has run its course. To
minimize the impact on Michelle, she may not be transferred until the issues concerning
her placement are resolved and all services and supports she requires are in place at the
new facility.

I

FACTS AND PROCEDURAL HISTORY

Michelle is a 54-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. 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.
Based on Michelle’s developmental disabilities, her parents admitted her to
Fairview at the age of 10. In August 1987, the trial court appointed George and
Michelle’s aunt, Coula, as Michelle’s limited conservators under the Probate Code. 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. The court has investigated and

4
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 the suitability of
Michelle’s Fairview placement under In re Hop (1981) 29 Cal.3d 82 (Hop) and
section 4825. The Harbor Regional Center initiated each of these annual “Hop reviews”
by requesting court approval for Michelle to remain at Fairview. Each time the court
conducted a Hop review, it appointed the Orange County Public Defender (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
November 2012, while that petition remained pending, the Public Defender filed a habeas
corpus petition on Michelle’s behalf, alleging Michelle’s ongoing Fairview placement
unlawfully restrained her personal liberty because it was not the least restrictive
placement capable of meeting her needs.
In response, George filed a petition for writ of mandate or prohibition to
prevent the trial court from deciding either the habeas corpus petition or the Hop petition.
George urged us to dismiss both petitions because the Public Defender lacked authority
to file the habeas corpus petition on Michelle’s behalf and the trial court lacked
jurisdiction under Hop to review Michelle’s ongoing Fairview placement. According to
George, Michelle’s Fairview placement should have been determined through the
Lanterman Act’s administrative fair hearing process, not in court. In a published opinion,
we granted George’s writ petition in part and denied it in part, “directing the trial court to
(1) enter an order dismissing the habeas corpus petition; [and] (2) conduct a hearing on

5
the Hop petition.”3 (Michelle K. v. Superior Court (2013) 221 Cal.App.4th 409, 452
(Michelle K.).)
On remand, the trial court dismissed the Public Defender’s habeas corpus
petition and scheduled the Harbor Regional Center’s Hop petition for trial. A few weeks
before the trial date, George filed a “Notice of Joinder of Hop Petition” stating he
“join[ed] in the currently pending Petition for Renewal of State Developmental Center
Placement (In re Hop/W&I §4825) filed by Harbor Regional Center.” Later that same
day, the Harbor Regional Center filed a “Motion for Withdrawal of Hop Petition,”
seeking an order allowing it to withdraw the pending Hop petition and vacating the trial
date on the petition. The motion explained, “the petition was filed [over three and one-
half years earlier] and the relief requested in the petition is no longer appropriate and [the
Harbor Regional Center] is no longer seeking placement in a state developmental center.”
The Harbor Regional Center argued it had the right to dismiss the action under Code of
Civil Procedure section 581 because it was the party who initiated the proceedings, it was
the only one with authority to keep Michelle at Fairview, and the hearing on the petition
had not yet commenced. In seeking to dismiss the Hop petition, the Harbor Regional
Center did not identify a specific facility to which it intended to transfer Michelle nor did
it seek an order changing Michelle’s placement.
George opposed the Harbor Regional Center’s motion, arguing the trial
court had jurisdiction to review Michelle’s ongoing Fairview placement despite the
Harbor Regional Center’s motion to withdraw its Hop petition because George, as
Michelle’s conservator with the authority to fix her residence, believed Fairview was the

3
We also directed the trial court to “hear and decide any request to appoint
new counsel for Michelle” because George argued the Public Defender was not acting in
Michelle’s best interests. (Michelle K., supra, 221 Cal.App.4th at p. 452.) That aspect of
our earlier decision is not at issue in this appeal.

6
least restrictive placement that met Michelle’s needs. George also argued his joinder in
the Hop petition prevented the Harbor Regional Center from dismissing the petition.
The trial court granted the Harbor Regional Center’s motion and dismissed
the Hop petition, explaining, “In the absence of any authority indicating Code of Civil
Procedure section 581(b) does not apply to Hop petitions, the Court finds this section
applicable. Joinder filed by Opposing party does not confer to that person authority
which is statutorily reserved for the regional center regarding placement. Opposing party
retains the ability for meaningful participation in any placement decision proposed by
Harbor Regional Center through the administrative fair hearing process.” The court also
emphasized that the question of which placement was most appropriate for Michelle was
not ripe for judicial review because no final determination had been made and the
administrative process had not been exhausted.
George appealed from the order dismissing the Hop petition and related
proceedings.4

4
Although an order dismissing an action or special proceeding under Code
of Civil Procedure section 581, subdivision (b)(1), generally is not appealable, none of
the parties question whether we properly may hear George’s appeal. We nonetheless
conclude it is appropriate to address the issues presented by the trial court’s order because
George’s appeal presents questions of law we review de novo and the nature of the
proceedings relating to judicial review of a developmentally disabled person’s ongoing
placement at a state developmental center render the issues capable of recurring, yet
evading review. (See Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 865,
fn. 5.) Indeed, the ability of these issues to recur and evade review is demonstrated by
the existence of two additional appeals currently pending before this court that challenge
a trial court order dismissing a Hop petition under Code of Civil Procedure section 581,
subdivision (b)(1). (See In re Donna P. (April 28, 2016, G050750) [nonpub. opn.]; In re
John C. (April 28, 2016, G051189 [nonpub. opn.].)

7
 II

DISCUSSION

A. The Lanterman Act and State Developmental Center Placements
The Lanterman Act “‘grants persons with developmental disabilities the
right to receive treatment and services to meet their needs, regardless of age or degree of
handicap, at each stage of life.’” (In re Michael K. (2010) 185 Cal.App.4th 1112, 1117
(Michael K.).) “The Legislature enacted the Lanterman Act to ‘establish certain rights of
the so-called developmentally disabled persons, primarily their entitlement to the
maximum degree of personal liberty and autonomy consonant with their handicap.’”
(Ibid.) “These [rights] include the ‘right to treatment and habilitation services and
supports in the least restrictive environment’ and the ‘right to dignity, privacy, and
humane care,’ with treatment, services and supports provided in natural community
settings to the maximum extent possible.” (Capitol People First v. State Dept. of
Developmental Services (2007) 155 Cal.App.4th 676, 682 (Capitol People).)
“A ‘“[d]evelopmental disability”’ is ‘a disability that originates before an
individual attains age 18 years, continues, or can be expected to continue, indefinitely,
and constitutes a substantial disability for that individual.’ (§ 4512, subd. (a).) The term
includes ‘mental retardation, cerebral palsy, epilepsy, and autism,’ but does not include
‘other handicapping conditions that are solely physical in nature.’ (Ibid.)” (Michelle K.,
supra, 221 Cal.App.4th at p. 422.)
“The state contracts with private nonprofit corporations to establish and
operate a network of 21 regional centers [including the Harbor Regional Center] that are
responsible for determining eligibility, assessing needs, and coordinating and delivering
direct services to developmentally disabled persons and their families. [Citation.] The
regional centers’ purpose is to ‘assist persons with developmental disabilities and their
families in securing those services and supports which maximize opportunities and

8
choices for living, working, learning, and recreating in the community.’ [Citation.] The
state ‘allocates funds to the centers for operations and the purchasing of services,
including funding to purchase community-based services and supports.’” (Michelle K.,
supra, 221 Cal.App.4th at p. 422.)
“‘The specific rights of persons with developmental disabilities and the
corresponding obligations of the state are determined through an individual program plan
(IPP) procedure that meets common statutory requirements. (§§ 4646-4648.) The IPP is
developed by a planning team that includes the [developmentally disabled person], his or
her legally authorized representative, and one or more regional center representatives.
(§ 4512, subd. (j).) The goals and objectives developed through the IPP process should
maximize opportunities for the individual to be part of community life; enjoy increased
control over his or her life; acquire positive roles in community life; and develop the
skills to accomplish the same. (§ 4646.5, subd. (a)(2).)’” (Michelle K., supra,
221 Cal.App.4th at p. 422.) The developmentally disabled person and his or her
conservator or representative are statutorily guaranteed “the opportunity to actively
participate in the development of the [IPP].” (§ 4646, subd. (b).)
“Before July 1, 2012, a nondangerous, developmentally disabled person
could be admitted to a state developmental center in two ways. First, the person could
submit a written admission application if he or she ‘is in such condition of mind as to
render him competent to make [the application].’ (§ 6000, subd. (a)(1).) Second,
section 4825 authorized admission ‘upon the application of the person’s parent or
conservator in accordance with the provisions of Sections 4653 and 4803.’ (See
§ 6000.5.) Section 4653 states ‘no developmentally disabled person shall be admitted to
a state hospital except upon the referral of a regional center.’ Section 4803 provides that
a regional center may not recommend admission of a developmentally disabled person to
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

9
limit the length of a developmentally disabled person’s commitment, nor does it require
judicial review of the placement.” (Michelle K., supra, 221 Cal.App.4th at pp. 422-423.)
“Effective July 1, 2012, the Legislature amended the Welfare and
Institutions Code to prohibit nondangerous, developmentally disabled persons from being
admitted to state developmental centers. (§§ 4507, 7505.) Section 7505 now provides
that a person shall not be admitted to a state developmental center unless the person is
developmentally disabled and the person is (1) committed by a court to Fairview
Developmental Center because the person is a danger to self or others under section 6500
and is suffering an acute crisis as defined in section 4418.7; (2) committed by a court to
the Porterville Developmental Center’s secure treatment program through the criminal
justice system or juvenile court system; or (3) a prior resident of a developmental center
who was provisionally released no more than 12 months earlier.” (Michelle K., supra,
221 Cal.App.4th at p. 423.)
“These recent Welfare and Institutions Code amendments do not require
moving nondangerous, developmentally disabled persons living in a state developmental
center on July 1, 2012, to a different facility. Instead, the amendments require the
regional center responsible for the committee to conduct a comprehensive assessment and
‘identify the types of community-based services and supports available to the [person].’
(§ 4418.25, subd. (c)(2)(A) & (B).) The regional center must then provide the assessment
to the individual program planning team to assist it in determining the least restrictive
environment for the committee. (§ 4418.25, subd. (c)(2)(D).)” (Michelle K., supra,
221 Cal.App.4th at p. 423.) The Legislature required the regional center to complete this
assessment by December 31, 2015 (§ 4418.25, subd. (c)(2)(C)), and the assessment must
be “updated annually as part of the individual program planning process for as long as the
[developmentally disabled person] resides in the developmental center” (§ 4418.25,
subd. (c)(2)(E)). When a community-based placement is identified and selected, all
necessary services and supports must be in place before transferring a nondangerous,

10
developmentally disabled person from a developmental center to the community-based
living arrangement. (§ 4418.3, subd. (a).)
“[T]he Lanterman Act guarantees an applicant for or recipient of services or
his or her representative ‘who is dissatisfied with any decision or action of [a regional
center]’ the right to an administrative fair hearing. (§ 4710.5, subd. (a).) The statute also
provides detailed provisions for claimants who wish to attempt to resolve the issue
through a voluntary informal meeting or through voluntary mediation before proceeding
to an administrative fair hearing. (§§ 4710.5, subd. (a); 4710.6, subds. (a), (b); 4710.7;
4710.8; 4710.9; 4711.5.)” (Conservatorship of Whitley (2007) 155 Cal.App.4th 1447,
1459-1460 (Whitley).)
“The [Department of Developmental Services] is required to ‘contract for
the provision of independent hearing officers’ to conduct the hearing. (§ 4712, subd. (b).)
The hearing officer is required to have special training in the law applicable to the
developmentally disabled and the services available to them and the law of administrative
hearings. (§§ 4710.5, subd. (a); 4712, subd. (b).) The agency awarding the contract for
independent hearing officers ‘shall biennially conduct, or cause to be conducted, an
evaluation of the hearing officers who conduct’ administrative fair hearings. (§ 4712,
subd. (n).)” (Whitley, supra, 155 Cal.App.4th at p. 1460.)
The Lanterman Act guarantees the claimant a prehearing exchange of
potential witnesses and documentary evidence, the opportunity to present witnesses and
evidence, the opportunity to cross-examine witnesses, the right to appear through counsel
or other representatives, and the right of access to records. (Whitley, supra,
155 Cal.App.4th at p. 1460; see Michelle K., supra, 221 Cal.App.4th at p. 424.) Absent a
showing of good cause, the regional center presents its witnesses and all other evidence
first followed by the claimant’s presentation of his or her case. (§ 4712, subd. (j);
Whitley, at p. 1460.) A recording of the proceedings must be made at public expense.
(§ 4712, subd. (k); Whitley, at p. 1460.)

11
 “Within 10 working days of the fair hearing, the hearing officer must
‘render a written decision’ containing ‘a summary of the facts, a statement of the
evidence from the proceedings that was relied upon, a decision on each of the issues
presented, and an identification of the statutes, regulations, and policies supporting the
decision.’ (§ 4712.5, subds. (a) & (b).)” (Whitley, supra, 155 Cal.App.4th at
pp. 1460-1461.) “Either side may seek judicial review of the administrative decision
through a writ of administrative mandamus.” (Michelle K., supra, 221 Cal.App.4th at
p. 424.)
In Hop, the Supreme Court examined the constitutionality of section 4825,
which was the Lanterman Act provision that previously allowed a developmentally
disabled person to be indefinitely confined in a state developmental center based on a
request by the person’s parent or conservator, a recommendation by a regional center,
and the absence of any objection from the person or the person’s representative. (Hop,
supra, 29 Cal.3d at pp. 87-88; Michelle K., supra, 221 Cal.App.4th at pp. 426-427.) The
Hop court explained personal liberty is a fundamental right both the United States and
California Constitutions guarantee to all individuals, including developmentally disabled
individuals, and placing a person in a developmental center is a significant restraint on
the person’s liberty interests because it is essentially a civil confinement. This restraint
therefore required application of criminal due process standards to test the confinement’s
validity, including a judicial hearing to determine whether the person’s disabilities
warranted the confinement. (Hop, at pp. 89, 92; Michelle K., at p. 427.)
The Hop court also concluded a developmentally disabled person’s equal
protection rights required a judicial hearing before confining the person in a state
development center under section 4825. No other similarly situated adult in need of
protective custody lawfully could be placed in a developmental center without a judicial
determination the placement was appropriate, including proposed conservatees under the
Lanterman-Petris-Short Act (LPS Act; § 5000 et seq.) and proposed committees under

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

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

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

14
person indefinitely confined in a developmental center without any independent review.
(Michelle K., at p. 443.) The periodic judicial review Hop and Michelle K. require is a
constitutional safeguard designed to render an otherwise unconstitutional statutory
scheme constitutional; it is not a procedural mechanism to help a developmentally
disabled person enforce his or her right to receive certain services and supports under the
Lanterman Act. (Michelle K., at pp. 428, 441; see Hop, supra, 29 Cal.3d at pp. 92-94;
Michael K., supra, 185 Cal.App.4th at 1128, quoting In re Borgogna (1981)
121 Cal.App.3d 937, 946 [“Hop does not address the issue ‘where the [regional] center
seeks to deescalate or make less restrictive the placement, but the ward opposes such a
transfer’”].)
Once the Harbor Regional Center withdrew its support for Michelle’s
placement at Fairview, Hop and Michelle K. no longer required judicial review to ensure
Michelle’s disabilities justified her ongoing confinement in a state developmental center
because Michelle may not remain at Fairview without the Harbor Regional Center’s
approval. As explained above, the Harbor Regional Center is responsible for determining
Michelle’s eligibility to receive Lanterman Act services and supports, assessing her
needs, and coordinating and delivering her services and supports. (Michelle K., supra,
221 Cal.App.4th at p. 422; Capitol People, supra, 155 Cal.App.4th at pp. 682-683.)
Michelle could not be admitted to Fairview without the Harbor Regional Center’s
approval, nor could her admission be renewed without its approval. (See § 4653; Hop,
supra, 29 Cal.3d at p. 87; Michelle K., at pp. 423, 426-427.)5

5
Because section 4653 states “no developmentally disabled person shall be
admitted to a state hospital except upon the referral of a regional center” (italics added),
George contends the section only applied to Michelle’s initial admission to Fairview, and
therefore he may maintain Michelle’s Fairview placement without the Harbor Regional
Center’s approval. George cites no authority to support this contention, and ignores the
Harbor Regional Center’s responsibilities to determine eligibility, assess needs, and
coordinate and deliver services and supports. Moreover, George overlooks that Michelle
has remained at Fairview based on a series of court orders authorizing placement for one

15
 Although George contends the trial court must review Michelle’s Fairview
placement because he believes it is the least restrictive placement capable of meeting her
needs, he lacks the authority to keep her at Fairview without the Harbor Regional
Center’s approval, and therefore a periodic Hop review is unnecessary. He relies on his
authority as Michelle’s limited conservator to fix her residence, but he was appointed her
conservator under the Probate Code, and Probate Code conservators lack the authority to
place a conservatee in a state developmental center without court approval.6 (See
Michelle K., supra, 221 Cal.App.4th at pp. 425, fn. 3, 429, People v. Karriker (2007)
149 Cal.App.4th 763, 779-780.) In recognition of this limitation, the court order
appointing George expressly excludes the authority to fix Michelle’s residence at
Fairview unless court approval is obtained. George also points to his statutory right as
Michelle’s conservator to actively participate in the individual program planning process
required to identify the services and supports the Harbor Regional Center will provide or
arrange for Michelle. (See § 4646, subd. (b).) That right of participation, however,
merely ensures George has the opportunity to provide input regarding Michelle’s
placement; it does not allow him to override the Harbor Regional Center’s placement
determination reached through the individual program planning process. (See Capitol
People, supra, 155 Cal.App.4th at pp. 698-699 [“while the Lanterman Act does
demonstrate an intent to include family members and conservators in the decisionmaking

year subject to further court approval. Each time the Harbor Regional Center applied for
court approval it therefore was essentially a new placement. (See Michelle K., supra,
221 Cal.App.4th at pp. 437-438.)
6
Prior to July 1, 2012, a conservator appointed under the LPS had authority
to place a conservatee in a state developmental center or other locked treatment facility if
the conservator determined it was the least restrictive placement. (Michelle K., supra,
221 Cal.App.4th at p. 425.) The 2012 amendments to the Welfare and Institutions Code
withdrew that authority. (Ibid.)

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

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

18
 Moreover, Michelle’s constitutional rights are not violated by the delays
inherent in the process of identifying and moving her to the least restrictive facility
capable of meeting her needs. As we recognized in Michelle K., Michelle “should not be
transferred until all issues regarding her new placement are resolved [because] . . . ‘“[her]
precipitous release . . . to [her] famil[y or] a[] community facilit[y] unprepared to care for
[her] could be both disruptive to [her] treatment program and potentially harmful to
[Michelle] and the community.”’” (Michelle K., supra, 221 Cal.App.4th at p. 444.) The
Welfare and Institutions Code also prohibits Michelle’s transfer to a new facility until all
necessary services and supports are in place. (§ 4418.3, subd. (a).) If the delays inherent
in finding a new placement for Michelle and transitioning her to it become excessive or
unreasonable, then George, or the Public Defender if it can make the showing we
described in Michelle K. (Michelle K., supra, 221 Cal.App.4th at pp. 431-432), may
petition on Michelle’s behalf for habeas corpus relief to compel judicial review of the
efforts to move Michelle to a new facility.7
The record does not reveal whether the Harbor Regional Center has
identified a specific community-based facility that it contends is capable of meeting
Michelle’s needs. The 2012 amendments to the Welfare and Institutions Code required
the Harbor Regional Center to conduct a comprehensive assessment of Michelle’s needs
and identify the types of community-based services and supports that are capable of
meeting those needs. (§ 4418.25, subd. (c)(2)(A) & (B).) The Harbor Regional Center
was required to complete that assessment by the end of 2015, and then to share it with
Michelle’s individual program planning team to assist it in determining the least

7
There is no need for the Harbor Regional Center to seek habeas corpus
relief on Michelle’s behalf because it can overcome any delays injected into the process
by George or anyone else by determining Michelle should be transitioned to a particular
facility and thereby compelling George to invoke the fair hearing process to challenge
that determination.

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

C. The Trial Court Did Not Error In Dismissing the Harbor Regional Center’s Hop
Petition
George also contends the trial court erred in granting the Harbor Regional
Center’s request to dismiss the Hop petition and related proceedings because George filed
a notice of joinder in the petition that prevented the Harbor Regional Center from
dismissing it. We disagree.
George does not dispute that Code of Civil Procedure section 581,
subdivision (b), grants a plaintiff or petitioner the right to dismiss its pleading at any time

20
before trial, nor does George dispute that section applies to the Harbor Regional Center’s
Hop petition. Instead, George contends case law recognizes an exception to a plaintiff’s
or petitioner’s right to dismiss an action when “the plaintiff or petitioner is not the sole
party in interest on plaintiff’s side and, though the plaintiff has instituted the proceeding,
is not entitled to terminate it.” (See 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings
Without Trial, § 292, p. 744.) According to George, he and Michelle, as parties in
interest, may require the trial court to decide the Hop petition and determine whether
Michelle’s disabilities continue to justify her Fairview placement. We do not find this
contention persuasive because it relies on a fundamental misunderstanding concerning
the nature of a periodic Hop review and the issues arising once the Harbor Regional
Center withdrew its support for Michelle’s continued placement at Fairview.
As explained above, the sole purpose of a periodic Hop review is to
determine whether a developmentally disabled person’s disabilities continue to justify the
restraints on the person’s fundamental liberty interests that are inherent in a section 4825
placement in a state developmental center. Here, the need for that review ended when the
Harbor Regional Center withdrew its support for Michelle’s continued placement at
Fairview and sought to dismiss the Hop petition. The disagreement between George and
the Harbor Regional Center over whether Michelle should be transferred to a community-
based facility or remain at Fairview is a dispute over what specific services Michelle is
entitled to receive, and must be resolved through the Lanterman Act’s fair hearing
process. Judicial review may be sought only after that administrative remedy has been
exhausted. After the Harbor Regional Center withdrew its support for Michelle’s
continued Fairview placement, there was nothing for the trial court to decide on the Hop
petition and neither George nor Michelle had any interest in the petition that prevented
the Harbor Regional Center from dismissing it.
George’s joinder in the Hop petition before the Harbor Regional Center
sought to dismiss the petition did not prevent the trial court from dismissing the petition.

21
Without the Harbor Regional Center’s support for Michelle’s ongoing placement at
Fairview, there is nothing in which George may join because, as explained above,
Michelle cannot remain at Fairview without the Harbor Regional Center’s approval.
Furthermore, George’s joinder was improper and ineffectual. Parties
voluntarily may join together in filing an action or seeking relief from the court in their
own name. (Code Civ. Proc., § 378.) Similarly, if a person already is a party to an action
or proceeding, the person may file a cross-complaint or cross-petition seeking affirmative
relief in the person’s own name (Code Civ. Proc., § 428.10), and if a person is not a party
to an action or proceeding, the person make seek leave of court to intervene and request
relief in the person’s own name (Code Civ. Proc., § 387).
A party also may join in the legal or factual arguments another party makes
in a motion or other request for relief, but that “joinder” does not entitle the joining party
to any relief. (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1390-1391,
superseded by statute on another issue as stated in Chitsazzadeh v. Kramer & Kaslow
(2011) 199 Cal.App.4th 676, 685, fn. 7; Village Nurseries v. Greenbaum (2002)
101 Cal.App.4th 26, 46-47.) For example, Decker involved a notice of joinder that, like
George’s, simply stated one party joined in another party’s motion without requesting
any relief in the name of the joining party. (Decker, at p. 1386.) We explained the
joining party lacked standing to appeal the trial court’s ruling on the underlying motion
and was not bound by that ruling because the joining party had not made a proper motion
or requested relief in its own name. (Id. at p. 1391; compare Barak v. The Quisenberry
Law Firm (2006) 135 Cal.App.4th 654, 660-661 [party’s joinder in another party’s
motion entitled joining party to relief because joinder expressly requested relief in name
of joining party and explained why arguments made in other party’s motion entitled
joining party to relief].)
George cites no authority that allows one party to unilaterally join in
another party’s pleading or request for relief and thereby prevent that party from

22
dismissing its pleading or request. Accordingly, we conclude George’s notice of joinder
did not prevent the trial court from dismissing the Harbor Regional Center’s Hop
petition.8

III
DISPOSITION

The order is affirmed. In the interest of justice, all parties shall bear their
own costs on appeal.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.

8
George also contends the trial court’s dismissal of the Hop petition violated
the writ of mandate we issued in Michelle K. Not so. We merely instructed the trial
court to conduct a hearing on the Harbor Regional Center’s Hop petition. (Michelle K.,
supra, 221 Cal.App.4th at p. 452.) We did not instruct the trial court to review
Michelle’s placement in the face of the Harbor Regional Center’s conclusion the
placement no longer was appropriate.

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