Judge James C. Chalfant, Case Number: 23STCP04175, Date: 2024-08-29 Tentative Ruling

Petitioner Luci O (“Luci”), by and through her mother Christina Oswald as guardian ad litem, seeks a writ of mandate directing Respondent Kim Johnson, in her official capacity as the Director of the California Department of Social Services (collectively, “DSS”), to set aside an administrative decision regarding the denial of Luci’s eligibility for protective supervision as a component of in-home supportive services (“IHSS”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Luci commenced this proceeding on November 14, 2023, alleging a cause of action for administrative mandamus pursuant to CCP section 1094.5 and Welfare and Institutions (“Welf. & Inst.”) Code section 10962. The verified Petition alleges in pertinent part as follows.

Luci is a child with Down Syndrome and brings the Petition by and through her mother, Christina Oswald, as guardian ad litem. Pet., ¶2.

DSS is required by Welf. & Inst. Code sections 10959-61 to conduct a hearing and make a final decision on an appeal from an action of a county, which acts as the agent of the Director in administering the IHSS program. Pet., ¶3.

On or about December 12, 2022, DSS issued a hearing decision which affirmed a Los Angeles County (“County”) denial of protective supervision to Luci under the IHSS program. Pet., ¶4.

On information and belief, DSS did not proceed in a manner required by law in rendering the decision because the decision misinterpreted applicable IHSS statutes and regulations, applied improper standards for authorizing IHSS services, and employed improper fair hearing procedures by failing to develop the record on the issues. Pet., ¶5. On information and belief, the DSS decision also is against the weight of the evidence because Luci met the eligibility conditions for receiving protective supervision services under IHSS statutes and regulations. Pet., ¶6.

Petitioner Luci seeks a writ of mandate to: (1) set aside the Director’s administrative decision denying protective supervision, and (2) remand the case and direct either (a) the County to authorize protective supervision and to pay Luci’s provider retroactive IHSS wages with prejudgment interest for services provided from the date of her application, or (b) the Director to conduct a rehearing in the manner required by law to determine whether Luci was entitled to protective supervision benefits at the time of her initial application. Luci also seeks costs and attorney fees under Welf. & Inst. Code section 10962.

On April 10, 2024, the court appointed Christina Oswald as guardian ad litem for Luci.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c).

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, supra, 4 Cal.3d at 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. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“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, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 515.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Alford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

In 1973 the Legislature enacted the IHSS program to enable aged, blind or disabled poor to avoid institutionalization by remaining in their homes with proper supportive services. Marshall v. McMahon, (1993) 17 Cal.App.4th 1841, 1844. The purpose of the IHSS program is to provide supportive services to persons who are unable to perform the services themselves and cannot safely remain in their homes or abodes of their own choosing unless these services are provided. Welf. & Inst. Code §12300(a). The program compensates persons who provide the services to a qualifying incapacitated person. Basden v. Wagner, (“Basden”) (2010) 181 Cal.App.4th 929, 931.

IHSS is governed by Welf. & Inst. Code sections 12300 et seq. DSS is charged with administering the IHSS program in compliance with state and federal laws. Welf. & Inst. Code §§ 12301, 12302; Miller v. Woods, (1983) 148 Cal.App.3d 862, 868. DSS is required to adopt regulations establishing a range of services available to recipients based on their individual needs. Welf. & Inst. Code §12301.1. These regulations are set forth in DSS’s Manual of Policies and Procedures (“MPP”) sections 30-700, et seq.[1]

The IHSS program provides a range of supportive services to persons who are eligible for the services. MPP §30-755.1. IHSS services include: (1) preparation and cleanup of meals, routine laundry, shopping for food and errands; (2) personal care services such as bowel and bladder care, dressing, bathing, oral hygiene, grooming; (3) accompaniment to medical appointments; and (4) protective supervision. See Welf. & Inst. Code §12300(b); MPP §§ 30–757.11-.30–757.19.

Applicants must satisfy two eligibility conditions to obtain any IHSS service: (1) they are “unable to perform the services themselves” and (2) they “cannot safely remain in their homes or abodes of their own choosing unless these services are provided.” Welf. & Inst. Code §12300(a). An applicant may receive up to 195 or 283 hours of services per month, depending on the severity of their needs. Welf. & Inst. Code §§ 12303.4(a),(b), 14132.952(b). The applicant may choose their provider (Welf. & Inst. Code §§ 12304(b), 12304.1), including relatives who live with them. Welf. & Inst. Code §12350; Basden, supra, 181 Cal.App.4th at 931.

DSS has issued several all-county letters (“ACL”) addressing IHSS benefits for a minor. AD 20-25.

County welfare departments administer the IHSS programs under DSS’s supervision. Miller v. Woods, (1983) 148 CalApp.3d 862, 868. The county processes the application for IHSS and determines the individual’s eligibility and needs and authorize services. The total amount of services is limited by statute, depending on the severity of the impairment and a recipient’s needs. Welf. & Inst. Code §12303.4; Marshall v. McMahon, supra, 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, and the number of hours the recipient will 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” – referring to a person needs no help performing the tasks – to “rank 5” – referring to a person needs total help performing them. 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 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 non-self-directing, confused, mentally impaired, or mentally ill persons only.” MPP §30-757.171. The required conditions for protective supervision to be authorized are: (1) the person is “non-self-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 v. Woods, supra, 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.” ACL No. 15-25, p. 5.

Unpredictable behavior must be sufficiently frequent and long enough in duration that constant supervision is necessary. ACL 15-25, p. 5.

The applicant’s mental functions of memory, orientation, and judgment are evaluated on a three-point scale: Rank 1 (unimpaired), 2 (mildly impaired), and 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, (“Calderon”) (1996) 45 Cal.App.4th 607, 615, 616; Marshall, supra, 17 Cal.App.4th at 1852-53.

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 dispositive on 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 whether a beneficiary meets the criteria for protective supervision. MPP §30-757.173.

A child is eligible for protective supervision “only as needed because of the functional limitations of the child.” Welf. & Inst. Code §12300(e)(4). Such supervision does “not include routine child care or supervision.” MPP §30-763.454(e). More specifically, a disabled minor is eligible for protective supervision only when he “need[s] more supervision than a minor of comparable age who is not mentally impaired/mentally ill.” ACL No. 15-25, p. 7. In fact, the level of additional supervision required must be significantly more. Ibid.

A minor must satisfy the following four requirements to qualify for protective supervision: (1) be non-self-directing due to a mental impairment/illness; (2) likely to engage in potentially dangerous activities (considering whether the minor is physically able to put him/herself at risk of harm); (3) need significantly more supervision than a minor of comparable age who is not mentally impaired/mentally ill; and (4) need 24 hour-a-day supervision to remain safely at home. All-County Letter 15-25.

To assess a minor for protective supervision, a county must: “(1) assess all IHSS eligible minors for a mental impairment/mental illness, and request the parent or guardian obtain available information and documentation about the existence of a minor’s mental impairment/mental illness; (2) evaluate a mentally ill/mentally impaired minor in the functions of memory, orientation, and judgment, on an individualized basis; (3) evaluate a mentally ill/mentally impaired minor even if there are no previous injuries; (4) evaluate a mentally ill/mentally impaired minor regardless of age; (5) assess whether the minor needs more supervision because of his/her mental impairment than a minor of the same age without such an impairment; (6) evaluate a mentally ill/mentally impaired minor even if the minor can be left home alone for a fixed period of time; (7) review any relevant information provided by the parent; (8) advise parents or guardians of the availability of, and the conditions for receiving protective supervision; and (9) not presume that services, which are otherwise compensable, will be provided voluntarily by a parent or guardian or anyone else. ACL No. 15-25, p. 6) (emphasis added). See also id., p. 7 (“‘More supervision’ can be more time, more intensity, or both.”).

State regulations and guidelines expressly prohibit a minimum age limit for protective supervision. ACL No. 15-25, p. 6.

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. Id. The claimant must also be informed of the availability of free legal representation. Id.

The hearing is conducted by an administrative law judge, 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 in judicial proceedings. Welf. & Inst. Code §10955.

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

The court has taken the Statement of Facts primarily from DSS’s opposition. Despite DSS’s discussion of the evidence (Opp. at 13-14), the facts are not at issue in this case.

Luci is a minor who was 15 years old at the time of the County’s assessment. AR 3. She has been diagnosed with Trisomy 21, otherwise known as Down Syndrome, as well as a speech delay. AR 3. Her disability manifests as “difficulties with her fine motor functions, with ambulating for long distances and with climbing based on a gross motor deficiency.” AR 3.

On June 7, 2022, County social worker (“CSW”) Eileen Alishan (“Alishan”) contacted Mrs. Oswald via telephone to conduct a parent interview. AR 154. The parent interview lasted approximately 40 minutes. AR 335. Mrs. Oswald indicated that she stays home to care for Luci while her husband, Tim Oswald, works full-time. AR 154. Luci currently attends a functional academic program at Agoura Hills High School. AR 155. She can follow some verbal instructions and directions, though repeat prompting may be required. AR 155. When asked if Luci is likely to engage in dangerous activities, Mrs. Oswald said that she is not. AR 158.

On June 8, 2022, CSW Alishan met with Luci and her sister at their home in Calabasas. AR 154. Luci said “hello” and identified herself when she met CSW Alishan. AR 155. Luci could “somewhat communicate without assistance and could answer simple questions,” but she also presented with some episodes of confusion. AR 154.

On June 15, 2022, the County sent a Notice of Action to Luci informing her that she was not eligible for protective supervision. AR 138-41. The County determined that Luci only required supervision “sometimes and for certain activities.” AR 140. She was deemed to be self-directing, unlikely to engage in potentially dangerous activities, and did not require 24-hour supervision. AR 158.

DSS held a November 9, 2022 hearing via telephone before Administrative Law Judge Ryan Bradley (the “ALJ”). AR 2. Edna McAfee appeared as Luci’s Hearing Representative, and both Mr. and Mrs. Oswald testified as Luci’s witnesses. CSW Alishan appeared on behalf of the County. AR 3.

The parties jointly submitted: (1) a SOC 821 dated September 12, 2022, which indicated that Luci has a severely impaired memory, moderately impaired orientation, and severely impaired judgment (AR 20); (2) the Request for a Hearing (AR 18); (3) an Applied Behavioral Analysis Report for Luci dated May 2, 2022 (AR 21-34); (4) a declaration by Mrs. Oswald dated September 12, 2022 (AR 116-17); and (5) a declaration of Kathryn Smart, an Oswald family friend and neighbor (AR 115).

Kathryn Smart’s declaration stated that on one occasion she spotted Luci retrieving her basketball in the street without checking for oncoming traffic. AR 115. Mrs. Oswald’s declaration stated in part that, although Luci’s elopement has been a focus of ABA therapy in the past, it has improved significantly over the last several years. AR 116.

The County additionally submitted its Statement of Position (AR 130-37), the Notice of Action dated June 15, 2022 (AR 138-41), and the Case Assessment Narrative. (AR 154-64). Luci additionally submitted a Multi-Disciplinary Report (“MDR”) dated May 2, 2022 (AR 35-83), her Individualized Education Plan (“IEP”) dated May 2, 2022 (AR 90-114), and a written response to the County’s Statement of Position and supplemental supporting declaration (AR 118-29).

Mrs. Oswald testified that Luci does not look for oncoming traffic before crossing the street. AR 292. When Mrs. Oswald asks Luci to check for cars before crossing the street, Luci will declare that no cars are coming even when cars are visible. AR 310. Mrs. Oswald would “never” send Luci even so far as next door alone because she may misunderstand the direction and walk into the street. AR 291-92. At school, Luci crosses the street from drop-off to her classroom with the help of an aide. AR 306.

Luci plays in the backyard daily. AR 323. Mrs. Oswald supervises Luci when she is playing in the backyard “most of the time” out of concern that she may elope. AR 322. Of particular concern is Luci’s desire to retrieve her basketball after throwing it over the backyard fence. Mrs. Oswald estimated that Luci loses her basketball over the fence 50-60% of the time she plays in the backyard. AR 323-24. When asked to estimate how frequently Luci attempts to elope from the backyard when unsupervised, Mrs. Oswald “wanted to make the assumption” that the attempts were frequent, but she could not provide a firm estimate because she would be “trying to estimate on something that’s occurring when I’m not there.” AR 322-23. “At least once, maybe more times”, she has left Luci unsupervised in the backyard and subsequently saw her running into the street to retrieve her basketball. AR 320.

Mrs. Oswald estimated that Luci previously attempted to elope out the front door of the house once every three to four months but now is “not particularly interested” in going out the front door. AR 324. Luci will go out the back door to enter the backyard. AR 324. To prevent elopement from the backyard, the Oswalds have secured the gate to the backyard with bungee cord, which Luci can sometimes figure out how to unlatch. AR 321. When asked if the family had considered placing a coded lock on the backyard gate, Mrs. Oswald admitted that they had not, and she believed that Luci would not be able to use a coded lock to elope if they installed one. AR 330-31. Luci does not elope at school. AR 305.[2]

CSW Alishan testified that, because Luci is self-directing and the County did not identify any potentially dangerous behaviors occurring frequently enough to warrant 24-hour supervision, she was ineligible for protective supervision. AR 280. The County assessed Luci as having a moderately impaired memory, unimpaired orientation, and moderately impaired judgment. AR 294-95, 301-02, 318-19.

CSW Alishan stated that to establish a “need for twenty-four hour supervision, [the County has] to provide evidence that daily, [Luci] is engaging in . . . a harmful behavior that needs to be monitored and stopped.” AR 328. The County did not identify any such behaviors in the in-home assessment, the parent interview, the IEP, or the ABA Report. AR 328. CSW Alishan noted that protective supervision is not a benefit that is provided “in case something might occur.” AR 328. While Luci is frequently supervised both at home and outside, the County could not base a decision on speculation as to what might occur if she is left unsupervised. AR 329-30.

The ALJ issued his decision on December 11, 2022. AR 2. The ALJ initially summarized the facts (AR 3-7) and the law concerning IHSS and protective supervision (AR 7-9).

The ALJ posed the following pertinent questions: (1) Is the minor non-self-directing due to mental impairment/mental illness? (2) If the minor is, is he/she likely to engage in potentially dangerous activities? (3) Does he/she need more supervision than a minor of comparable age who is not mentally impaired/mentally ill? and (4) When it is found that more supervision is needed in question 3, is 24 hour-a-day supervision needed for the minor to remain at home safely? AR 10.

Protective supervision is available for monitoring the behavior of a non-self-directing and mentally impaired or mentally ill recipient/applicant who is likely to engage in potentially dangerous activities, and to safeguard the individual against injury, hazard or accident. Protective supervision requires a need for 24 hours-a-day supervision. AR 10.

The ALJ found that it is undisputed that Luci has a mental impairment and has been diagnosed with Down Syndrome. AR 10. Since she is mentally impaired, the County must follow the four-step process to determine if Luci is eligible for protective supervision. AR 11.

Since Luci is mentally impaired, the next step is to determine whether she is non-self-directing as a result of his mental impairment. AR 11. “Non-self-direction” is an inability, due to a mental impairment or mental illness, for individuals to assess danger and the risk of harm, thereby causing the individuals to most likely engage in potentially dangerous activities that may cause self-harm. AR 11.

The County concluded that Luci is self-directing. To assess for non-self-direction, the minor applicant’s functions of memory, orientation, and judgment are evaluated. AR 11.

In the SOC 821 form, Luci’s doctor indicated that she is severely impaired in the area of memory. Under the memory section, the doctor indicated that Luci cannot maintain continuity of thought during conversations and does not initiate activities of daily living, but she can recall her age, address and the names of the days of the week. AR 11.

The County assessed Luci’s memory as moderately impaired because she could recall her age, her address, and the days of the week, and also could recall the location of the school nurse’s office and library at her school’s campus. The social worker acknowledged that Luci could not recall her grade in school. AR 12.

Based on the testimonial and documentary evidence and giving due weight to the medical opinion of the recipient’s doctor, the ALJ determined that Luci has a severe impairment in memory. AR 12.

In the SOC 821 form, Luci’s doctor indicated that she is moderately impaired in orientation. AR 12.

The County assessed Luci’s orientation as unimpaired because she appeared to know where she was and was familiar with her family. The social worker stated that she was informed that Luci can navigate her school and is able to find her classrooms and the school library unaided. AR 13.

Based on the testimonial evidence and giving due weight to the opinion of Luci’s treating physician, the ALJ determined that Luci’s orientation is moderately impaired. AR 13.

In the SOC 821 form, Luci’s doctor indicated that she is severely impaired in judgment. Under the judgment section, the doctor stated that Luci is unable to assess dangerous situations and risks of harm to herself. AR 13.

The County assessed Luci’s judgment as mildly impaired because she had not eloped for several months as of the time of the assessment, and she was using tools learned from her doctors to better manage her emotions and refrain from dangerous behaviors. However, the social worker also acknowledged that Luci did engage in tantrums when denied preferred activities and would refuse to do assignments at school that she finds to be difficult. AR 13.

Based on the testimonial and documentary evidence of poor traffic safety awareness and giving due weight to the medical testimony of Luci’s doctor, the ALJ determined that Luci’s judgment is severely impaired. AR 14.

The ALJ determined that Luci does not retain sufficient memory, orientation, and judgment to assess danger and risk of harm. AR 14. The weight of the evidence shows that she engages in dangerous behaviors, cannot remember or understand the dangers she encounters, and does not retain sufficient judgment to avoid or stop them from occurring. Therefore, Luci is determined to be non-self-directing. AR 14.

After determining that the minor applicant is non-self-directing, a protective supervision analysis next requires a determination of whether he or she is likely to engage in potentially dangerous activities and has the physical ability to put him/herself at risk of harm. AR 14.

Luci places herself at risk of harm. Mrs. Oswald testified that Luci attempts to elope from the backyard multiple times per week to retrieve her ball in the street. However, there is not adequate evidence to establish that Luci’s unsupervised swimming in the backyard is inherently dangerous. AR 15.

Luci’s doctor opined in the SOC 821 that she retains the mobility and physical capacity to place herself in situations which would result in injury, hazard, or accident. The ALJ found that she has the physical capacity to cause herself harm. AR 15.

The ALJ determined from testimony and documents in evidence that Luci can place herself at risk of harm and is likely to engage in one potentially dangerous activity: pursuing her ball into the street unsafely. AR 15.

If an environmental modification eliminates a hazard, then there is no longer a need for protective supervision with respect to that hazard and protective supervision should not be authorized to address it. AR 15.

Mrs. Oswald testified that she had made no environmental modification to prevent Luci from engaging in the unsafe pursuit of her ball into the street. Thus, the ALJ determined, based on the evidence in the record, that Luci is likely to engage in the potentially dangerous activity of elopement from the backyard to pursue her ball into the street and no environmental modification has prevented her attempts to elope from the backyard. AR 15.

After determining that the minor applicant is likely to engage in potentially dangerous behavior, a protective supervision analysis next requires a determination of whether the minor applicant needs more supervision than a minor of comparable age who is not mentally impaired. More supervision can be more time, more intensity, or both. AR 15.

While unimpaired children of the same age may not engage in the same dangerous behaviors with the same level of persistence, unimpaired 15-year-old children, due to their being on the cups of adulthood, typically receive a low level of supervision to safeguard against their engaging in these same unsafe behaviors. AR 15. The level of supervision associated with a typical 15-year-old, provided by virtue of age and not disability, would not adequately prevent Luci from eloping from the backyard multiple times a week, especially since prevention of this dangerous activity requires relatively constant monitoring during daytime hours. AR 15.

The intensity of supervision necessary to safeguard Luci is greater than that usually utilized for a neurotypical 15-year-old child because unimpaired children of that age are typically trusted to leave the house independently during daytime hours -- after leaving a note or providing notice to a caretaker -- and are expected to navigate traffic on their own when crossing the street. AR 16.

The ALJ determined that, given Luci’s persistent elopement from the backyard, she requires more supervision than an unimpaired child of a similar age would require. AR 16.

The protective supervision analysis requires a determination of whether the minor applicant needs supervision 24 hours per day, seven days a week. Protective supervision is available to safeguard an individual from dangerous and fluctuating/episodic behavior. If the behavior in question is considered predictable, and the need for supervision is only at certain times of the day, there is no protective supervision eligibility because there is not a 24-hour-a-day need. AR 24.

Luci’s father testified that she inadvertently bounces the ball over the fence and into the street when playing basketball in her backyard. AR 16. She has learned to unlatch a side gate and leave the backyard to pursue the ball into the street. AR 16. The father also testified that Luci does not demonstrate good traffic safety awareness in pursuit of the ball, often attempting to enter the street without looking both ways. The father further stated that she will attempt to pursue the basketball into the street once every two days on average. AR 16.

Mrs. Oswald testified that she joins Luci when she notices that Luci is playing basketball in the backyard so that she can monitor the play. Mrs. Oswald stated that Luci plays in the backyard on a daily basis. AR 16. However, Mrs. Oswald also testified that this behavior only occurs under the following specific circumstances: (a) Luci is in the backyard; (b) she is playing basketball; and (c) the ball bounces over the fence, causing her to retrieve it by passing through the backyard fence. AR 16. Mrs. Oswald testified that Luci rarely elopes under any other circumstance. AR 16.

The ALJ determined that, since Luci only elopes from a particular place after engaging in a particular activity, Mrs. and Mr. Oswald are on notice when to provide additional monitoring to prevent Luci’s elopement. AR 16. As a result, the behavior of eloping from the backyard in pursuit of a ball is predictable because it occurs under known circumstances. AR 16.

While Luci’s behavior is inherently dangerous, it is not unpredictable. Therefore, she is ineligible for protective supervision. AR 16.

Protective services are provided only to eligible non-self-directing, confused, mentally impaired, or mentally ill individuals who would most likely engage in potentially dangerous activities without supervision. MPP §30-757.171; see also Calderon, supra, 45 Cal.App.4th at 616.

To be eligible for protective supervision benefits, Petitioner Luci needed to prove that she: (1) is a minor who is non-self-directing due to a mental impairment/illness; (2) likely to engage in potentially dangerous activities (considering whether the minor is physically able to put him/herself at risk of harm); (3) needs more supervision than a minor of comparable age who is not mentally impaired/mentally ill; and (4) needs 24 hour-a-day supervision to remain safely at home. ACL No. 15-25, p. 7. That risk must be evident “[a]t the time of the initial assessment or reassessment” (MPP §30-757.173(a)) and protective supervision cannot be authorized for routine childcare or supervision. MPP §30-763.456(d). Opp. at 10.

The ALJ made findings in favor of Luci’s eligibility for protective supervision on three of these four elements. The ALJ found that Luci is a minor who is non-self-directing due to a mental impairment/illness, that she is likely to engage in potentially dangerous activities and is physically able to do so, and that she needs more supervision than a minor of comparable age who is not mentally impaired/mentally ill.

On the fourth element, the ALJ found that Luci only elopes from a particular place after engaging in a particular activity, and therefore her behavior of eloping from the backyard in pursuit of a ball is predictable because it occurs under known circumstances. Because the behavior is predictable, Luci does not need supervision 24-hours-a-day.

DSS defends the ALJ’s decision in part on grounds that the evidence supports a conclusion that Luci’s elopement behavior is too infrequent to warrant 24-hour supervision. Opp. at 13-14.

As Petitioner points out, the ALJ made no finding on the frequency of elopement and its impact on the need for 24-hour supervision. Reply at 1. She also is not challenging whether the ALJ’s findings are supported by the evidence. Id. Petitioner argues only that the ALJ’s decision is not supported by his findings and that the ALJ misapplied the legal standards for protective supervision. As such, Petitioner raises only issues of law.

Petitioner notes that the ALJ’s decision denied protective supervision solely on the basis that she did not need 24-hour supervision. She points to the following findings that undermine this conclusion:

“While unimpaired children of the same age may not engage in the same dangerous behaviors with the same level of persistence, unimpaired 15-year-old children, due to their being on the cusp of adulthood, typically receive a very low level of supervision to safeguard against their engaging in unsafe behaviors…. [This level of supervision]…would not adequately prevent the recipient from eloping from the backyard multiple times per week, especially since prevention of this dangerous activity requires relatively constant monitoring during daytime hours. . . . AR 15-16 (emphasis added).

“The claimant further stated that the recipient will attempt to pursue the basketball into the street, once every two days on average….The claimant also stated that the recipient plays in the backyard on a daily basis.” AR 16 (emphasis added).

Thus, on one hand, the ALJ found that Luci’s dangerous behavior of pursuing the ball into the street requires constant monitoring. On the other hand, the ALJ concluded that the “behavior of eloping from the backyard in pursuit of a ball is predictable” and does not require 24-hour supervision. This is a contradiction that constitutes a prejudicial abuse of discretion. If Luci’s eloping from the backyard is predictable, then she would not require constant monitoring to prevent the behavior. Rather, she would only require supervision during those predictable times of day when she would be at risk of eloping. Pet. Op. Br. at 5-6.

Petitioner argues that a non-self-directing minor who engages in dangerous behavior (AR 14-15), requires more supervision than an unimpaired child of a similar age (AR 16), and requires constant monitoring to prevent the dangerous behavior (AR 15), meets each of the eligibility requirements for protective supervision. See MPP §30-757.171, 173(a); MPP §30-763.456(d). Therefore, the ALJ’s findings show that Luci requires protective supervision. Pet. Op. Br. at 6-7.

Petitioner argues that the error in the ALJ’s 24-hour supervision analysis stems from a misapplication of the predictable behavior exception to protective supervision eligibility. The ALJ found that Luci’s “behavior of eloping from the backyard in pursuit of a ball is predictable, because it occurs under known circumstances.” AR 16. The ALJ found that these circumstances only occur when (a) Luci is in the backyard, (b) she is also playing basketball and (c) the ball bounces over the fence while she is playing basketball, causing her to retrieve it by passing through the backyard fence. AR 16. The ALJ concluded that, since Luci only elopes from a particular place after engaging in a particular activity, Mr. and Mrs. Oswald were on notice when to provide additional monitoring to prevent elopement. AR 16. Pet. Op. Br. at 7.

Petitioner relies on ACL 15-25, which clarified the 24-hour supervision requirement of MPP section 30-757.173(a). Pet. Op. Br. at 7. Although Luci was 15 years old at the time of her IHSS application (AR 3), the ALJ found that the level of supervision associated with a typical 15-year-old would not adequately prevent her from eloping from the backyard multiple times per week. AR 15. Therefore, the ALJ’s decision cannot both deny Luci protective supervision and require her parents to be on notice as to when to provide additional monitoring to prevent the recipient’s elopement (AR 16), unless the decision also finds that the additional monitoring is only needed at certain times of the day under ACL 15-25, p. 5. Pet. Op. Br. at 8-9.[3]

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:

The court agrees with Petitioner that the ALJ’s finding is erroneous because he relied solely on predictability without evaluating whether the predictable behavior occurred during certain times of the day. Specifically, the ALJ never evaluated how long Luci plays basketball in the backyard, only finding that it occurred “on a daily basis.” AR 16. In fact, the ALJ found that Luci’s eloping requires constant monitoring, which suggests that it may be a longer period of dangerous behavior. AR 15. In order to determine whether less supervision can sufficiently address Luci’s needs, the ALJ should not only have asked whether her dangerous behavior occurs under known circumstances, but also whether her dangerous behavior occurs at certain times of the day per ACL 15-25, p. 5. Luci’s parents cannot know when to provide more than the “very low level of supervision” needed for an unimpaired 15-year-old unless her dangerous behavior occurs at certain times of the day. Pet. Op. Br. at 7-8, n. 4.[4]

DSS responds that Luci’s dangerous behaviors must be frequent and unpredictable enough to require 24-hour supervision to qualify for protective services. MPP §30-757.173(a). Absent a need for 24-hour supervision to avoid injury, protective supervision to “avoid danger…would be beneficial, but it does not fall within the scope of protective supervision and is not one of the services the statute provides.” Calderon, supra, 45 Cal.App.4th at 616. Opp. at 12.

Luci only elopes from her backyard under one specific circumstance: to retrieve her basketball when she loses it over the backyard fence. She did not appear inclined to elope in other circumstances. Elopement is not identified as a problematic behavior in Luci’s IEP, the ABA Report, or the MDR. AR 21-34, 35-83, 90-114. She infrequently attempted to elope through the front door, but Mr. and Mrs. Oswald testified that she is “not particularly interested” in doing so. AR 324. Mrs. Oswald could only identify one incident of elopement at school in the past several years. AR 305. Similarly, Luci’s poor traffic safety awareness only becomes relevant if she is unsupervised in the backyard, loses her ball over the backyard fence, the ball rolls into the street, and she then elopes from the backyard to retrieve it. Luci did not present evidence that she attempts to play in the backyard at unusual times, such as the middle of the night or the early morning. Opp. at 12.

Far from being a constant unpredictable danger, Luci’s elopement from her backyard is infrequent and predictable. She only attempts to elope in one specific circumstance that is easy for her parents to respond to effectively. She has only presented evidence of two instances of elopement and, because she plays in her backyard almost every day, this is further evidence of the infrequency of the behavior. Opp. at 14-15. Thus, it was reasonable for the ALJ to determine that Luci’s parents were sufficiently “on notice as to when to provide additional monitoring to prevent [Luci’s] elopement” (AR 16) and that she was not eligible for protective supervision because her dangerous behaviors are too predictable to warrant 24-hour supervision. Opp. at 12-13.

As stated ante, the ALJ made no finding concerning frequency and the decision cannot be upheld on the infrequency of Luci’s elopement. Petitioner also correctly replies that, while there is no evidence that she is attempting to enter or play in the backyard at unusual times -- such as the middle of the night or the early morning – that fact is insufficient to uphold the ALJ’s finding. DSS’s opposition ignores the ALJ’s finding that Luci “requires relatively constant monitoring during daytime hours” to prevent her elopement from the backyard AR 15. Mr. and Mrs. Oswald cannot be required to supervise their 15-year-old daughter during all daytime hours without protective supervision. Reply at 2.[5]

The Petition is granted. Luci is non-self-directing due to mental impairment. Her dangerous activities consist of elopement. She is physically able to elope, and she needs more supervision than a minor of comparable age who is not mentally impaired/mentally ill. Whether she meets the final requirement of a 24-hour need for protective supervision depends on whether her dangerous behavior is considered predictable, and the need for supervision is at certain times of the day. This requires an evaluation of the timing of Luci’s dangerous behavior as well as its predictability. It is also true that unpredictable behavior must be frequent and long enough in duration that constant supervision is necessary. ACL 15-25, p. 5. These issues have not been properly evaluated in the ALJ’s findings.

Although Petitioner seeks a remedy of retroactive award, the proper remedy is a remand to DSS for a new decision that correctly applies the law and corrects the inconsistency in the findings. DSS has full discretion on the outcome of such decision, including receiving additional evidence.

Petitioner’s counsel is ordered to prepare a proposed writ and judgment, serve it on the DSS’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for September 24, 2024 at 9:30 a.m.

[1] Petitioner Luci asks the court to judicially notice (1) DSS Manual of Policies and Procedures (“MPP”) Chapter 30-700 (Ex. A) and (2) All County Letter (“ACL”) 15-25 (Ex. B). The requests are granted. Evid. Code §452(c).

[2] Elopement was not identified as a continuing problematic behavior in the ABA Report, the MDR, or Luci’s IEP. AR 21-34, 35-83, 90-114.

[3] Petitioner contends that the regulations do not exclude a recipient from protective supervision eligibility who engages in dangerous behaviors under “known circumstances”. Rather, the regulations focus on whether a “need exists for twenty-four-hours-a-day of supervision.” MPP § 30-757.173(a). Thus, a denial of protective supervision based on a dangerous behavior occurring under known circumstances that still require 24-hour supervision would violate the regulations. Pet. Op. Br. at 9, n. 5.

[4] Petitioner correctly notes that dangerous behaviors for which protective supervision would be required may be predictable. For example, in Miller v. Woods, supra, 148 Cal.App.3d at 869, the recipient of protective supervision was an “autistic, blind and brain-damaged child [who] lapses into seizures and temper tantrums . . . venting his frustrations by banging his head against a wall.” If predictability were the only issue, this recipient should not have qualified for protective supervision because his head-banging behavior occurred under the known circumstances in which he lapses into seizures, temper tantrums, and frustration. ACL 15-25 requires more than predictability. Pet. Op. Br. at 9.

[5] Petitioner adds that DSS ignores its own policy that a person does not have to suffer injury to be eligible for protective supervision. Protective supervision eligibility only requires a “history of a propensity for placing him/herself in danger,” not actual injury or evidence of fully executed dangerous behaviors. ACL 15-25, p. 5. Luci “plays in the backyard on a daily basis” and “will attempt to pursue the basketball into the street, once every two days on average.” AR 16 (emphasis added). While there is evidence of only two occasions in which Luci actually eloped from her backyard to chase a ball, that may be because her parents prevented her from going into the street multiple times per week. AR 16. Therefore, the actual number of times Luci has made it into the street is not determinative of her “propensity for placing []herself in danger”. Reply at 3.