Judge Curtis A. Kin, Case Number: 24STCP02923, Date: 2025-04-03 Tentative Ruling

24STCP02299 Luchia Tsegaberhan
The Petition will be granted. A copy of the signed decree will be available in Room 112 of the clerk’s office seven days after the date of the hearing.

Petitioner Hortencia Munoz, as conservator and mother of recipient Kevin Garista (“Garista”), petitions for a writ of mandate directing Respondent Kimberley Johnson, in her official capacity as the Director of the California Department of Social Services (“DSS”), to set aside the administrative decision denying protective supervision to Garista. For the reasons that follow, the petition is DENIED.

At the time of the administrative hearing, Garista was an adult in his late twenties diagnosed with, inter alia, autism, moderate intellectual disability, attention deficit hyperactivity disorder, and trichotillomania. (AR 3, 31, 45, 154.) He resides with petitioner, who is also his conservator, and is a client of the San Gabriel/Pomona Regional Center. (AR 27-30, 71.)

On March 27, 2023, Los Angeles County (“County”) denied Garista’s request for 24-hour protective supervision and authorized in-home services (“IHSS”) hours in the amount of 160 hours and 33 minutes per month, effective April 1, 2023. (AR 3, 159, 171.) The IHSS hours authorized were intended for time for preparing and cleaning up after meals; bowel and bladder care; feeding and dressing; bathing, oral hygiene and grooming; medical transportation; and transferring (help moving in/out of bed and on/off seats, etc.) (AR 4-5, 24, 179-84.)

On May 26, 2023, petitioner appealed the County’s denial of Garista’s request for 24-hour protective supervision. (AR 25-26.) On July 24, 2023 and August 24, 2023, a hearing on eligibility was conducted by Administrative Law Judge Patrick Kubasek (“ALJ Kubasek”) (AR 7, 172.) Petitioner submitted for ALJ Kubasek’s consideration petitioner’s Request for Hearing (AR 25-26); her position statement with accompanying exhibits (31-151); E-Note No. 133, dated August 11, 2023 (152-153); and written statements from petitioner and Garista’s sister. (154-158.)

The County contended that Garista did not qualify for protective supervision because he is self-directing. The County submitted its position statement (AR 159-70); Notice of Action dated March 27, 2023 (AR 171-74); Needs Assessment Form (SOC 293) (175-90); an undated SOC 821 form (AR 191); an SOC 821 form, dated November 5, 2020 (AR 193); 24-Hour-A-Day Coverage Plan (SOC 825), dated December 17, 2020 (AR 194); petitioner’s Individual Program Plan (“IPP”), dated December 18, 2019 and January 10, 2020 (AR 195-212); and case assessment notes. (213-15.)

Petitioner, petitioner’s authorized representative, Garista’s sister, a county representative, and a county social worker participated in the hearing. (AR 3.) The social worker, petitioner, and Garista’s sister each testified. (AR 236-43, 259-63, 265-85.)

During the hearing, the county social worker, Leticia Garcia, testified that Garista was aware of various dangers and could understand certain risks, such as not touching hot surfaces. (AR 237-38.) Garcia further testified that any potentially dangerous activities that Garista may have engaged in were isolated incidents. (AR 240.) She also testified that Garista was capable of controlling his anger. (AR 238.)

Petitioner testified that Garista lacked awareness of his environment and would frequently engage in nonself-directing behavior that would require protective supervision. (AR 247, 267.) Garista’s sister also testified that she installed a security system to monitor and prevent Garista’s attempts to elope. (AR 281.) Both acknowledged that Garista would take his phone with him when leaving the house. (AR 283.) Petitioner further testified that Garista does not understand street traffic signals. (AR 247.) Petitioner and Garista’s sister stated that Garista engages in self-injurious behavior such as kicking things when upset, pulling his hair, and picking at this skin (AR 266, 277), but Garista’s sister noted Garista would stop upon seeing blood (AR 277.) Garista uses the microwave without supervision to warm up his food, but he but does not fully grasp the concept of time when cooking food with this device. (AR 248, 279.)

On January 19, 2023, ALJ Kubasek issued a decision sustaining the County’s denial of Garista’s request for protective supervision (“ALJ Decision.”) (AR 3-24.) In the ALJ Decision, it was undisputed that Garista was mentally impaired due to his autism, ADHD, and intellectual disability. (AR 19.) It was further found that Garista was mildly impaired as it related to his functions of memory, orientation, and judgment. (AR 19-23.) Ultimately, ALJ Kubasek determined that Garista “is self-directing because his memory, orientation, and judgment are not so impaired that he is unable to assess danger and the risk of harm from his behaviors.” (AR 23.) Thus, ALJ Kubasek concluded that Garista did not qualify for protective supervision.

On September 11, 2024, petitioner filed a Verified Petition for Writ of Mandate. On February 3, 2025, petitioner filed her opening brief. On March 4, 2025, respondent filed her opposition brief. On March 19, 2025, petitioner filed a reply. The Court has received a hard copy of the administrative record.

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 reviews an agency’s determination of an application for welfare benefits under the independent judgment standard. (Fink v. Prod (1982) 31 Cal.3d 166 178-179.) 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 has the power to 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.) This Court has “a duty to weigh the evidence and to exercise its independent judgment on the facts,” but, “[i]n so doing, [shall be] assisted by the [respondent]’s work in sifting the evidence and making its findings, which c[o]me to the trial court with a strong presumption of correctness.” (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1077.) Such “presumption of correctness is the starting point for the trial court’s review, but this rebuttable presumption may be overcome by the evidence.” (Ibid.)

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.)

“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. The Department issues additional guidance on IHSS benefits in All-County Letters (“ACL”) to county departments. (ACL No. 15-25, ACL No. 17-95.)

County welfare departments administer the IHSS programs under DSS’s supervision. (Miller, 148 CalApp.3d at 868.) The county processes the application for IHSS and determines the individual’s eligibility and needs and authorizes services. The total amount of services is limited by statute, depending on the severity of the impairment and the recipient’s needs. (Welf. & Inst. Code § 12303.4; Marshall v. McMahon (1993) 17 Cal.App.4th at 1844.)

Counties have a legal duty to “endeavor at all times to perform...[their] duties in such manner as to secure for every person the amount of aid to which he is entitled” (Welf. & Inst. Code § 10500), and they must “correctly determine eligibility and need” for services. (MPP §30-760.24). To determine whether a person needs help with tasks covered by an IHSS service (Welf. & Inst. Code §12301.2(a)-(b); MPP §30-757.1(a)), a county must “evaluate the effect of the . . . [person’s] physical, cognitive and emotional impairment on functioning” to perform those tasks (MPP §30-756.1-.3) by using state assessment guidelines. (Welf. & Inst. Code §12309(a); MPP §30-761.1.)

Trained county social workers determine which supportive services a recipient needs, as well as the number of hours a recipient should receive for each authorized service, by using a uniform needs assessment tool. (Welf. & Inst. Code §§ 12305.7(e)(1), 12309; MPP §30-761.1.) A five-point scale is used to evaluate eligibility, including an examination of an applicant’s level of ability, functioning, and dependence on assistance. (MPP §§ 30-756.1, 30-756.2.) A county must rank the degree of impairment in the person’s functioning from “rank 1” (indicating a person needs no help performing the tasks) to “rank 5” (indicating a person needs total help performing tasks). (Welf. & Inst. Code § 12309(d)(1), (2), (5); MPP §30-756.1.) For each rank, state regulations specify the average range of time it takes to help a person with the tasks included in each IHSS service, except for protective supervision. (MPP §30-757.1(a).) A county must reassess a recipient’s need for IHSS services on an annual basis. (MPP §30-761.212.)

Protective supervision is a benefit offered through the IHSS program. (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.” (MPP §30-757.17.)

“Protective Supervision is available for observing the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons only.” (MPP § 30-757.171.) The conditions required for protective supervision to be authorized are: (1) the person is “nonself-directing, confused, mentally impaired, or mentally ill” (MPP §30-757.171); and (2) “a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely” (MPP § 30-757.173(a)). Such persons “cannot protect themselves from injury.” (Miller, 148 Cal.App.3d at 869.)

Protective supervision benefits are not routinely offered but are offered if there is a constant 24-hour-a-day need. (MPP §30-757.173(a).) This does not include predictable risks. 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:

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.

In considering the conditions for protective supervision, the applicant’s mental functions of memory, orientation, and judgment are evaluated on a three-point scale: Rank 1 (unimpaired); Rank 2 (mildly impaired); and Rank 5 (severely impaired). (MPP §30-756.372.) Other factors could include the living environment, age, lack of injuries and parental absence, and/or fluctuation in needs. (Welf. & Inst. Code § 12301.1.) The need for around-the-clock supervision hinges on whether the applicant would engage in potentially dangerous behaviors if he/she did not have 24-hour supervision. (MPP §§ 30- 756.372, 30-757.171; Calderon v. Anderson (1996) 45 Cal.App.4th 607, 615, 616; Marshall, 17 Cal.App.4th at 1852-53.)

As the need for 24-hour supervision is a condition to qualify for protective supervision, the law requires social services staff to request “that a person requesting protective supervision submit [medical] certification to the county.” (Welf. & Inst. Code § 12301.21.) This certification is on a DSS standard form (SOC 821) that a physician or other qualified medical professional completes. (MPP § 30-757.173(a)(1).) Another standard form (SOC 873) is a medical certification form filled out by a licensed health care professional to enable disabled, blind, or elderly individuals to receive services from the IHSS program.

The SOC 821 and SOC 873 forms are not alone dispositive of whether an IHSS recipient qualifies for protective supervision. (Welf. & Inst. Code § 12301.21; MPP §30-757.173(a)(1)(A)(3).) Other pertinent information such as the social worker’s interview with the recipient is part of the overall assessment. (MPP § 30-757.173(a)(2).) As with all IHSS services (except paramedical services), county social services staff make the final determination on whether a beneficiary meets the criteria for protective supervision. (MPP § 30-757.173.)

California has adopted a system for a fair hearing, codified at Welf. & Inst. Code section 10950, et seq. and Government Code section 11500, et seq., which is consistent with federal requirements. (See 42 U.S.C. § 671(a)(12).) If an applicant’s request for benefits is denied, the applicant may request a hearing with DSS conducted by an administrative law judge or DSS’s director. (Welf. & Inst. Code §§ 10950, 10055, 10953.) DSS is represented at the hearing by an appeal hearing specialist. (MPP § 22-073.13.) The county is represented at the hearing by a representative and its social worker also may attend.

When DSS’s appeal hearing specialist is assigned to a case, he or she must review the applicable law and the evidence in the case record, including contacting the eligibility worker if necessary. (MPP § 22-073.22.) If the appeal hearing specialist determines that a hearing is appropriate, he or she must then contact the claimant to inquire if the claimant plans to attend the hearing and determine if there are any additional issues that the claimant intends to raise at the hearing. (MPP § 22-073.232(a)-(b).) The appeal hearing specialist must provide the claimant with “any and all information which can be of assistance to the claimant in preparing for the hearing.” (MPP § 22-073.232(c).) This includes all regulations and evidence, including evidence favorable to the claimant's case. (Ibid.) The claimant must also be informed of the availability of free legal representation. (Ibid.)

The hearing is conducted by an administrative law judge, who is required to prepare a written “fair, impartial and independent proposed decision” upon the close of the proceedings, addressing all issues identified by the parties. (Welf. & Inst. Code §§ 10953, 10953.5, 10954, 10958 and 10958.1.) Hearings are conducted in an “impartial and informal manner”; testimony must be submitted under oath or affirmation; and the hearing need not be conducted in accordance with the rules of procedure or evidence applicable to judicial proceedings. (Welf. & Inst. Code § 10955.)

Judicial review of the decision is available under CCP section 1094.5. Welf. & Inst. Code § 10962.

Petitioner argues ALJ Kubasek abused his discretion in denying her appeal because the weight of the evidence supports a finding that Garista is entitled to protective supervision. Upon review of the evidence, in its independent judgment, the Court disagrees, as the record evidence indicates Garista does not require 24-hours-a-day supervision to remain at home safely—a necessary condition for receiving protective supervision.[1]

Under MPP § 30-757.173(a), a petitioner must show that he requires “twenty-four-hours-a-day supervision in order . . . to remain at home safely.” “The purpose of protective supervision is to monitor active behavior in order to prevent harm from daily hazards…. [P]rotective supervision is available for those IHSS beneficiaries who … cannot protect themselves from injury, and who would most likely engage in potentially dangerous activities.” (Calderon, 45 Cal.App.4th at 616; accord Marshall v. McMahon (1993) 17 Cal.App.4th 1481, 1846-87.)

Here, petitioner focuses on three categories of self-endangerment by Garista purportedly requiring 24-hours-a-day supervision: interactions in the kitchen; eloping; and self-injurious behavior. (Pet. Brief at pp. 8-9, 14.)

With regard to Garista’s interactions in the kitchen, there is evidence that he may not always recognize the time on the microwave oven and may set the timer longer than needed. (AR 73, 248.) On one occasion, he placed popcorn in the microwave for 30 minutes and caused the smoke alarms to go off. (AR 73.) On a second occasion, he placed pizza in the microwave for 20 minutes instead of 20 seconds. (AR 279.) However, as recognized by Garista’s sister, he understands the purpose and use of the microwave oven, including a general understanding that heating is done in a matter of seconds. (AR 279:7-8 [“He sees it as like, oh, this is my way to warm up my food”; AR 279:18-19 [“So he thought he was putting it in for 20 seconds”].) Further, as ALJ Kubasek observed, there was “no evidence [Garista] places unsafe items in the microwave or uses it for any other reason that its designed purpose.” (AR 22.) As for other potential kitchen hazards, “[e]nvironmental modifications such as removing knobs from stove or adding safety latches can be used” to protect against harm. (AR 215.) Along those lines, petitioner testified that she keeps knives locked up so that Garista cannot access them on his own. (AR 284.) Garista’s social worker also testified that Garista knew not to get close to fire or hot surfaces. (AR 238.)

Such evidence does not establish sufficiently frequent or consistent dangerous behavior or risks in the kitchen to suggest that 24-hours-a-day supervision is necessary. Moreover, harm relating to food preparation in the kitchen is likely to occur during times when Garista is receiving IHSS services, and, as a result, protective supervision would be superfluous. (MPP § 30-763.332.) Accordingly, the Court does not find that Garista will engage in a dangerous activity while in the kitchen to warrant 24-hours-a-day supervision to keep him safe at home.

As for elopement, as ALJ Kubasek noted, neither Garista’s IPP nor the SOC 821 raised concerns regarding elopement. (AR 22.) ALJ Kubasek acknowledged that Garista leaves the house without supervision to burn energy, but also noted, per the DDS report dated January 23, 2023, that such behavior occurred less than once a month. (AR 21, 23.) While petitioner’s sister testified that Garista would attempt to leave the home one time per day, she also indicated the family had purchased a security system to monitor Garista, which has allowed them to prevent Garista from leaving unsupervised or to redirect him to some other activity within the home. (AR 281-83.) The Court thus finds that the record does not support a finding that evidence of potential elopement supports a finding that 24-hour-a-day supervision is necessary to keep Garista safe at home.

On the issue of self-injurious behavior, the record indicates that Garista’s hair-pulling was considered “very minimal.” (AR 23, 74.) Any aggressive behavior was deemed “unusual.” (AR 74.) As noted by Garista’s social worker, per petitioner’s statement, Garista “will not engage in any aggressive behavior . . . or destruction of property.” (AR 238.) Moreover, when Garista picks at his skin, he stops when he bleeds because he is afraid of blood. (AR 277-278.) The Court thus agrees with ALJ Kubasek’s assessment that Garista “has demonstrated awareness of potential dangers in that he understands when he is bleeding, is afraid of blood, and will seek first aid if injured.” (AR 23.) As for an incident during which Garista broke a mirror with his hand, this was considered an isolated incident. (AR 6, 241.) Based on the evidence in the record, the Court does not find that Garista has demonstrated self-injurious behavior that is either sufficiently frequent or intense to warrant 24-hours-a-day supervision to keep him safe at home.

Because the administrative record does not support a finding that Garista requires 24-hours-a-day supervision to remain at home safely, the petition is DENIED. Pursuant to Local Rule 3.231(n), respondent shall prepare, serve, and ultimately file a proposed judgment.

[1] Because the Court finds that 24-hour-a-day supervision is not required for Garista to remain safely at home, the Court does not address whether Garista is nonself-directing—though the Court agrees with ALJ’s Kubasek’s conclusion that Garista’s functions of memory, orientation, and judgment indicate he is self-directing. (See AR 19-23.) Further, if anything, the finding that Garista does not need 24-hour-a-day supervision is bolstered by the ALJ’s various conclusions concerning his memory, orientation, and judgment, including that Garista “has a demonstrated ability to recall past events and information” (AR 19), “is oriented to self” (AR 20), “is aware of others” (AR 20), “is sufficiently oriented to place” (AR 20), “does not put self at risk and has moderate disorientation” (AR 20), “has demonstrated awareness of potential dangers” (AR 23), “is able to reflect on actions and express his thoughts and desires” (AR 23), and has the “ability to articulate when he needs help and has some understanding of his limitations” (AR 23).