Metropolitan News-Enterprise


Wednesday, November 13, 2013


Page 1


C.A. Rejects Bid to Oust Public Defender From Mental Health Case

Panel Says Conservatee Entitled to Independent Counsel, Even Over Conservator’s Objection




The conservator for a developmentally disabled adult may not replace the conservatee’s court-appointed counsel with a private attorney retained by the conservator, the Fourth District Court of Appeal has ruled.

Div. Three, in an opinion by Justice Richard Aronson, denied a petition by the brother of a 51-year old woman to remove the public defender as the woman’s attorney for purposes of legally mandated periodic reviews of her placement. The panel did, however, agree with the brother that there was no merit to the public defender’s petition to have the woman released from the Fairview Developmental Center.

The woman, identified only as Michelle K., has an IQ of 23 and has lived at Fairview since she was 10. Her brother, George K., is her coconservator and objected to her release from Fairview, which the public defender sought under recent amendments to the Lanterman Developmental Disabilities Services Act.

Regional Centers

The state contracts with 21 regional centers for the developmentally disabled, run by private, nonprofit corporations. These centers provide various services to the developmentally disabled, including conducting assessments to determine where such persons might appropriately be placed.

The state maintains two developmental centers—Fairview and Porterville—which are a highly restrictive form of placement.

Prior to July 1, 2012, a developmentally disabled person who was not considered dangerous could be admitted to a center upon the person’s own application, or that of a parent or conservator, upon referral by a regional center. But such admissions were subject to In re Hop (1981) 29 Cal.3d 82.

The court held in that case that persons admitted to the developmental centers under those provisions had the same rights as persons committed involuntarily to a fair hearing process to determine the appropriateness of the placement. The process, codified in Welfare and Institutions Code Sec. 4825,  includes an annual opportunity for the appropriate regional center to initiate a judicial review, with the admittee represented by the public defender.

‘Very Exceptional Circumstances’

The court further held that—while the annual review will satisfy due process requirements in the usual case—in “very exceptional circumstances,” the public defender may seek a less restrictive placement by petition for writ of habeas corpus.

Under amendments to the Lanterman Act that became operative last year, new admissions to the state developmental centers are limited to persons who are committed by a court, and only those who are considered dangerous or who were conditionally released from a center during the previous 12 months may be committed.

Persons admitted to the centers before the amendments took effect may remain there, however, if a less restrictive placement is not appropriate.

Michelle K. has remained at Fairview under a series of orders entered by the Orange Superior Court following annual Hop reviews. The most recent petition was filed by the Harbor Regional Center in January 2011; it urged the court to authorize continued placement on the ground that there was no less restrictive environment that could meet her needs.

Following the same procedure as with other reviews, the judge appointed the public defender to represent Michelle K. and authorized her continued placement pending a hearing. In November of last year, however—with the Hop petition still pending—the public defender filed a habeas corpus petition seeking her immediate release, although no alternative placement was identified.

L.A. Lawyer

George K., her brother and coconservator, objected to the habeas petition, retained private counsel—Jon L. Rewinski of the downtown Los Angeles firm Locke Lord—and asked that the public defender be removed as counsel and Rewinski allowed to appear in his place. Superior Court Judge Caryl Lee commenced a combined hearing on the Hop and habeas corpus petitions, ruled that the public defender was entitled to remain as counsel if he so chose and that Rewinski could not appear in that event, and continued the hearing

Before the hearing could resume, however, Rewinski brought a writ petition, resulting in a stay of the trial court proceedings and the issuance of Friday’s ruling by the Court of Appeal.

Aronson, writing for the panel, said habeas corpus was not appropriate because the very exceptional circumstances required by Hop did not apply. The public defender, he explained, did not show that George K. was acting outside his sister’s best interests, or that the availability of annual reviews was an inadequate means of protecting her rights.

But allowing a private attorney retained by the conservator to represent the conservatee at a Hop hearing, over the objections of the public defender, represents a potential conflict of interest, the justice reasoned.

“We may not substitute the good intentions of a developmentally disabled person’s parent or conservator for the person’s right to a hearing, appointed counsel, or any other constitutional safeguard Hop requires,” Aronson explained, elaborating:

“Allowing George to select Michelle’s counsel for the Hop hearing would render her right to independent counsel meaningless because George simply could replace the Public Defender with counsel who would follow George’s instructions without independently evaluating whether those instructions are in Michelle’s best interest.”

The conservator may, however, participate in the hearing and present his disagreements with the public defender, or may request that the public defender be replaced by another independent counsel, the justice said.

Aronson emphasized, however, the limited nature of Hop’s remedy and said the public defender’s role was to represent the conservatee’s best interests, not necessarily to oppose continued placement.

The case is Michelle K. v. Superior Court (Harbor Developmental Disabilities Foundation), 13 S.O.S. 5820.


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