Judge: Curtis A. Kin, Case: 23STCP00056, Date: 2024-02-27 Tentative Ruling

Case Number: 23STCP00056    Hearing Date: February 27, 2024    Dept: 82

Petitioner Audrie M., by and through Irene Briseno, as guardian ad litem, petitions for a writ of mandate (1) directing respondent Kim Johnson, Director, California Department of Social Services (“Department”), in her official capacity, to set aside the administrative decision denying protective supervisor to petitioner and (2) remanding the case for further proceedings.

I.       Factual Background

A.           In-Home Supportive Services

“In 1973 the Legislature enacted the In-Home Supportive Services (IHSS) program to enable aged, blind or disabled poor to avoid institutionalization by remaining in their homes with proper supportive services.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 867.) “The Department and its director are responsible for administering the IHSS program in compliance with state and federal laws. [Citations.] The Department promulgates regulations to implement the statutes [citations] while the county welfare departments administer the program under the state’s general supervision. The county departments process applications for IHSS assistance [citations], determine the individual’s needs and authorize services. [citation.].” (Id. at 868.)

The IHSS program is governed by Welfare and Institutions Code sections 12300, et seq., and the Department’s Manual of Policies and Procedures (MPP), sections 30-700, et seq. The services that may be authorized through the IHSS program are specified in MPP sections 30-757.11 through 30-757.19. (See RJN Ex. A.) The Department issues additional guidance on IHSS benefits in All-County Letters (“ACL”) to county departments. (RJN Exs. B [“ACL No. 15-25”], D [“ACL No. 17-95”].)

B.           Protective Supervision

Protective supervision is an IHSS supportive service. (Welf. & Inst. Code § 12300(b).) Protective supervision “consists of observing recipient behavior and intervening as appropriate in order to safeguard the recipient against injury, hazard, or accident.” (RJN Ex. A at MPP § 30-757.17.) It is a benefit available for observing the behavior of “non-self-directing, confused, mentally impaired, or mentally ill persons only.” (RJN Ex. A at MPP § 30-757.171.)

Protective supervision is only authorized if “[a]t the time of the initial assessment or reassessment, a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely.” (RJN Ex. A at MPP § 30-757.173(a).) Furthermore, protective supervision must be limited to the functional limitations of the recipient and cannot be authorized for routine childcare or supervision. (RJN Ex. A at MPP § 30-763.456(d).)

MPP section 30-757.172 specifies five circumstances in which protective supervision is not authorized:

(a) For friendly visiting or other social activities;

(b) When the need is caused by a medical condition and the form of the supervision required is medical.

(c) In anticipation of a medical emergency;

(d) To prevent or control anti-social or aggressive recipient behavior.

(e) To guard against deliberate self-destructive behavior, such as suicide, or when an individual knowingly intends to harm himself/herself.

“The Department’s regulations, and case law, define the purpose and form of protective supervision, which, in essence, determines the eligible recipients of this benefit…. ‘“Protective supervision” services authorized by section 12300 are ‘for monitoring the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons....’ [Citation.] … To be eligible for such services, an individual must show ‘that twenty-four hour need exists ... and that the recipient can live at home safely if protective supervision is provided.’ [Citation.] [¶] Some recipients are old, suffering degenerative diseases. Others are young but retarded, epileptic, blind, brain damaged or schizophrenic. The recipients cannot protect themselves from injury. Some are self-destructive. For example, one autistic, blind and brain-damaged child lapses ‘into seizures and temper tantrums ... venting his frustrations by banging his head against a wall.’ Others cannot control normal but potentially hazardous activities such as cooking or smoking a cigarette.’ [Citation.]” (Calderon v. Anderson (1996) 45 Cal.App.4th 607, 614-15, quoting Miller v. Woods, 148 Cal.App.3d at 869.) “‘Protective supervision’ appears to be similar to care given small children, that is, anticipating everyday hazards and intervening to avert harm.” (Marshall v. McMahon (1993) 17 Cal.App.4th 1841, 1847.) “[E]ligibility for IHSS benefits must generally be reassessed on an annual basis. [Citations.]” (Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 754.)

C.           County Denies Protective Supervision to Petitioner

At the time of the annual reassessment at issue, petitioner was a 10-year-old female diagnosed with autism spectrum disorder (“ASD”), chromosomal duplication and deletion, cranial facial syndrome, weak muscle tone in her upper and lower extremities, and a heart condition. (AR 3.) Petitioner resides with her mother, Irene Briseno, and her siblings. (AR 2-3.)  

After county social worker Maria Borromeo conducted petitioner’s annual reassessment on April 14, 2021, petitioner was notified on April 22, 2021, that she was authorized for 105 hours and 22 minutes per month of IHSS benefits, an increase of one hour and 48 minutes, but was denied protective supervision. (AR 3, 48, 50.) The County determined that, although petitioner has a mental impairment and is non-self-directing, she is not likely to engage in potentially dangerous activities or in need of 24-hour a day supervision. (AR 76.)

On July 7, 2021, Briseno and Roberto Corral, petitioner’s authorized representative, filed a request for a hearing on the denial of protective supervision. (AR 20.)

D.           Respondent Affirms Denial of Protective Supervision

On December 8 and 14, 2021, a telephonic administrative hearing was held before an administrative law judge (“ALJ”) concerning the County’s denial of protective supervision. The social worker and petitioner’s mother testified. (AR 186-265, 277-329.) Documentary evidence was also submitted into evidence. (AR 3-4, 24-47, 58-170.)

Following the hearing, the ALJ issued a proposed decision to uphold the County’s denial of protective supervision. (AR 2-19.) After having considered the evidence, the ALJ found that petitioner had a mental impairment at the time of reassessment. (AR 6.) The ALJ also found that petitioner has a “moderate memory deficit, moderate disorientation, and mildly impaired judgment.” (AR 13.) The ALJ determined that petitioner is self-directing. (AR 13.) The ALJ additionally determined that some of petitioner’s potentially dangerous behaviors are unlikely to occur due to safeguards. (AR 18-19.)

            Having found that petitioner is not likely to engage in potentially dangerous behaviors, the ALJ determined that petitioner was ineligible for protective supervision, even if petitioner were determined to be non-self-directing. (AR 19.)

II.      Procedural History

            On January 10, 2023, petitioner filed a verified Petition for Writ of Administrative Mandamus. On March 23, 2023, respondent filed an Answer. On November 17, 2023, petitioner filed an opening brief. On March 15, 2023, respondent filed an opposition. On December 29, 2023, petitioner filed a reply and lodged the administrative record with the Court.

III.     Standard of Review

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

The Court exercises its independent judgment in reviewing denials of applications for public assistance. (See Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 752.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) 

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.)

A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

IV.     Analysis

A.           Request for Judicial Notice

The Court rules on petitioner’s requests for judicial notice as follows:

1.            Exhibit A – Department Manual of Policies and Procedures, Chapter 30-700 – GRANTED (Evid. Code § 452(b))

2.            Exhibit B – All-County Letter No. 15-25, Protective Supervision Clarifications – GRANTED (Evid. Code § 452(c))

3.            Exhibit C – Notice of Proposed Changes in Department Regulations: Protective Supervision Proration, Nonself-Direction Clarification, and Nonself-Directing Definition, Ord No. 0822-06 – GRANTED (Evid. Code § 452(c))

4.            Exhibit D – All-County Letter No. 17-95 (Id. § 452(c)) – GRANTED (Evid. Code § 452(c))

5.            Exhibit E – Correction to Attachment B (Annotated Assessment Criteria) of All-County Letter 06-34, Dated August 31, 2006, Hourly Task Guidelines Regulations For In-Home Supportive Services/Personal Care Services Program/Independence Plus Waiver Programs – GRANTED (Evid. Code § 452(c))

B.           Merits

            Petitioner seeks a writ of administrative mandate directing respondent to set aside its denial of protective supervision. Petitioner makes the following arguments:

1. The administrative decision erroneously required petitioner to be “nonself-directing” for protective supervision. (AR 13 [“Although the child has a mental impairment, she is self-directing. Therefore, she is not eligible for protective supervision”]; AR 16; RJN Ex. A at MPP § 30-757.171, emphasis added [“Protective Supervision is available for observing the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons only”.)

2. The finding that petitioner engaged in purposeful and intentional behavior, which rendered petitioner ineligible for protective supervision, was unsupported because there was no finding that petitioner knows that her behavior may cause self-harm. (AR 13 [“Since the child is engaged in purposeful and intentional behavior, the child is self-directing as opposed to nonself-directing”]; RJN Ex. A at MPP § 30-757.172(e); RJN Ex. D at ACL 17-95 at 6 [“[A] recipient who displays intentional self-destructive behavior, with knowledge that the activity may cause self-harm, would not be PS-eligible”].)

3. The finding that characterized petitioner’s hitting or choking herself as predictable, which rendered petitioner ineligible for protective supervision, was unsupported because there was no finding on whether the hitting or choking occurred at certain times of the day. (AR 19; RJN Ex. A at MPP § 30-757.173(a); RJN Ex. B at ACL 15-25 at 5 [“Protective Supervision requires a 24/7 need, so if the behavior in question is considered predictable, and the need for supervision is at certain times of the day, there is no Protective Supervision eligibility because there is not a 24 hour-a-day need”].)

4. Even if “nonself-directing” were a requirement for protective supervision, petitioner argues that the findings in the decision do not establish that she was self-directing because there was no finding on whether she could assess danger and the risk of harm. (AR 16; RJN Ex. B at ACL 15-25 at 3 [“[N]onself-direction is an inability, due to a mental impairment/mental illness, for individuals to assess danger and the risk of harm, and therefore, the individuals would most likely engage in potentially dangerous activities that may cause self-harm”].)

Starting with the third argument, an abuse of discretion is established if respondent “has not proceeded in the manner required by law” or “the order or decision is not supported by the findings.” (CCP § 1094.5(b).) For a person to receive protective supervision, the social service staff must determine that “[a]t the time of the initial assessment or reassessment, a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely.” (RJN Ex. A at MPP § 30-757.173(a).) According to ACL 15-25, which interprets MPP § 30-757.173(a):

Protective Supervision requires a 24/7 need, so if the behavior in question is considered predictable, and the need for supervision is at certain times of the day, there is no Protective Supervision eligibility because there is not a 24 hour-a-day need. Alternatively, unpredictable episodic behavior does meet the 24/7 requirement, as the need for supervision is constant. The unpredictable episodic behavior must be frequent and long enough that constant supervision is necessary.

(RJN Ex. B at 5, emphasis added.)

Petitioner finds insufficient the portion of the ALJ’s decision which states: “The child hitting or choking herself may also be potentially dangerous, but this is also predictable because the evidence shows that the child only hits or tries to choke herself if there is no one nearby to hit.”[1] (AR 19; Opening Br. at 10:15-21.)  Petitioner contends that, with respect to hitting and choking, the ALJ’s finding about the predictability of such behaviors was erroneous, because there was no finding concerning such behaviors occurring at “certain times of the day,” as referenced in ACL 15-25. That is not quite right. While the ALJ may not have identified the “times of the day” such behaviors occur temporally (e.g., morning, afternoon, night, etc.), the ALJ certainly did find when during a 24-hour period such behaviors occur—when there is no one nearby to hit.  Thus, the ALJ’s finding that the child’s dangerous behavior happens “only . . . [i]f there is no one nearby to hit” satisfies both the predictability and timing to show there is not a 24-hour-a-day need for protective supervision.  In this regard, the Court does not find that ACL 15-25’s “certain times of the day” guidance necessarily requires a strict temporal finding; rather, what is more important is a finding of when harmful behaviors may predictably occur so as to evaluate whether 24-hour-a-day supervision is required.  The ALJ’s finding does that here.

The ALJ also set forth the evidence on which the finding regarding predictability and times of the day is based. During the hearing, petitioner’s mother testified that petitioner hits herself three to four times a week. (AR 11 [“The claimant testified that during the week, the child can get frustrated like this about 3 to 4 times.”]; see also AR 297-99 [testimony from petitioner’s mother].) With respect to choking, petitioner’s mother testified that petitioner chokes herself once or twice a month if she is upset. (AR 11 [“Sometimes when the child is upset, she will grab her neck and choke herself…. The claimant testified that the child engages in this behavior about 1 to 2 times a month but she mostly hits others or herself if she cannot reach others if she is upset.”]; see also AR 309-12 [testimony from petitioner’s mother]; AR 5 [Individual Program Plan (“IPP”) states that when upset, petitioner uses her hands to choke herself]; AR 32 [IPP].)

For the foregoing reasons, having found that petitioner’s hitting or choking herself is predictable and only occurs when there is no one nearby to hit, the ALJ “proceeded in the manner required by law.” Further, the conclusion that protective supervision is unwarranted is supported by the findings.[2]

In light of the foregoing with respect to petitioner’s third argument, the Court does not reach the first, second, and fourth arguments listed above. With respect to the first and fourth arguments, irrespective of whether a person must be non-self-directing to be eligible for protective supervision, the need for 24-hour-a-day supervision for the recipient to remain at home safely must exist. (MPP § 30-757.173(a).) With respect to the second argument, irrespective of whether petitioner intends to harm herself, the need for round-the-clock supervision must exist for protective supervision to be available. (MPP § 30-757.173(a).) For the reasons stated above, petitioner has not established that such a need for 24-hour-a-day supervision exists. Accordingly, to the extent respondent “has not proceeded in the manner required by law” or “the order or decision is not supported by the findings” with respect to the first, second, and fourth arguments, any claimed abuse of discretion in connection therewith would not be prejudicial.

            An abuse of discretion must be prejudicial for writ of mandate to issue. (CCP § 1094.5(b).) “[A]n incorrect interpretation of the law arrived at by the application of an incorrect legal theory cannot invalidate a determination otherwise correct in result.” (Morris v. Unemployment Ins. Appeals Bd. (1973) 34 Cal.App.3d 1002, 1006.) Regardless of whether the ALJ misinterpreted the law in holding that non-self-direction was a requirement of protective supervision or misapplied the intentional behavior exception to protective supervision eligibility, petitioner would still not be entitled to protective supervision due to the lack of necessity for 24-hour-a-day supervision. Accordingly, a writ of mandate shall not issue.

V.      Conclusion

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent shall prepare, serve, and ultimately file a proposed judgment.