Judge Mary H. Strobel, Case 21STCP02150 2022-09-20 Tentative Ruling

Petitioner Ruby Mekan (“Petitioner”) petitions for a writ of administrative mandate directing Respondents California Department of Social Services and Kimberley Johnson, in her official capacity as Director, California Department of Social Services (“Respondents”) to set aside an administrative decision rescinding Petitioner’s Resource Family Approval (“RFA”) pursuant to Welfare and Institutions Code section 16519.61.

Petitioner’s RFA Funding; Communications with County Social Workers; and Relationship with Aron Pasillas

Petitioner became a full-time guardian of her minor nephew, E.M., in 2018. She was approved for RFA funding for E.M. on June 14, 2018. (AR 128, 155.) As a condition of receiving this funding, the county carried out periodic assessments of Petitioner’s home and family life, consistent with state statutes and regulations. (See Oppo. 9-10 and Opening Brief (“OB”) 5-7; see generally Welf. & Inst. Code § 16519.5(c), (d); § 16519.61(a)-(c).)

Starting in November 2018, County social workers had several interactions with Petitioner relevant to her RFA funding. On November 28, 2018, an unidentified male individual was spotted sleeping in Petitioner’s bedroom during a home check. (AR 205.) Petitioner asserted, and the evidence shows, that this individual was not a current romantic partner, but the father of one of her older children, who worked in the area and was not feeling well. (AR 165, 172.)

In January 2019, a County social worker met with Petitioner and informed Petitioner of RFA guidelines and the need to keep County’s Department of Children and Family Services (“Department”) informed of any significant changes in her household. (AR 288, 205, 403.) According to County, Petitioner denied being in a romantic relationship with anyone during the January 2019 visit. (AR 205.)

On April 30, 2019, Petitioner met with County social worker Carmen Alvarez and told Alvarez that she was 12 weeks pregnant. (AR 155, 288.) At this time, Petitioner also informed Alvarez that the father of her unborn child was Aron Kyle Pasillas. (AR 288.) Pasillas is also referred to as Individual No. 1 in the administrative record and administrative decisions. (See e.g. AR 130-132.) Petitioner had a romantic relationship with Pasillas starting in January 2017. (AR 400, 411.) This relationship was interrupted when Pasillas was incarcerated in August 2017. (AR 288, 411-12.) Petitioner rekindled her relationship with Pasillas in January or February 2019, after he was released from prison. (AR 433.) This relationship continued until April 2019, when Pasillas was arrested again and convicted of assault with a deadly weapon. (AR 423, 433.) Pasillas has a criminal history, which was known to Petitioner during their relationship. (See e.g. AR 133-34, 431-433.)

The record includes an Update to Existing Resource Family Approval Assessment prepared by Department (“Assessment”). (AR 286-290.) According to the Assessment, Petitioner acknowledged at an interview on April 30, 2019, that Pasillas has issues with alcoholism, a long criminal history, and that she knew this during their relationship. (AR 288-89; see also AR 431-33 [acknowledging knowledge of criminal history].) Also on April 30, 2019, Petitioner told Pasillas that she “didn’t want to be involved with him if he kept drinking because she didn’t want that around her children.” (AR 288-89.) Petitioner also stated that Pasillas would act inappropriately when he was drinking. (Ibid.) She also stated that she kept in contact with Pasillas after he was incarcerated in August 2017. (Ibid.; see also AR 401-402, 433-436 [testimony re: Petitioner’s contact with Pasillas while he was incarcerated].) She also stated that she would consider a relationship with Pasillas after he is released from prison if he commits to sobriety. (AR 288-89.)

According to the Assessment, Petitioner met with county social workers on July 3, 2019. Petitioner reportedly stated that “she will never agree to not have contract with [Pasillas] as he is the father of her daughter but she will make sure that he is sober before he is allowed in the home.” (AR 290.)

A child family team meeting was held with Petitioner on January 23, 2020. According to the Assessment, Petitioner stated that she was then in a relationship with Pasillas and they would continue the relationship once he is released from prison as they have a daughter together. Petitioner denied Pasillas posing any risk to the minor dependent. (AR 290.) Petitioner reportedly stated that Pasillas’ criminal history was due to his drinking and that he is currently sober. (Ibid.)

On March 10, 2020, the County sent a Notice of Action (“NOA”) to Petitioner informing her that it had rescinded her RFA funding. (AR 151.) The County listed its reasons for rescinding funding, including: (1) violation of Welfare & Institutions Code Section 16519.5; (2) making false or misleading statements to the County to obtain or maintain RFA funding; (3) failure to comply with the assessment process; (4) failure to comply with reporting requirements; and (5) failure to disclose information regarding a significant adult regularly in the home. (AR 151-52.) Petitioner timely submitted her appeal of the rescission decision. (AR 128.)

Petitioner represented herself in a state fair hearing, held telephonically before administrative law judge Selena Harrell on August 5, 2020. (AR 127-128.)

At the hearing, Petitioner testified that she was aware in 2017 that Pasillas had been arrested for assault with a deadly weapon. (AR 431.) She testified that she had a “sexually-driven” relationship with him: “I went out and had relations with him, if you call it like that and my pregnancy was not planned.” (Ibid.) When asked by the ALJ about her current relationship with Pasillas, Petitioner stated: “He’s the father of my daughter and we will coparent. There is no relationship in terms of romantic relationship. When he gets out [of prison], he’s going to his place of residence and I just plan to have him see his daughter if I feel that he’s sober and can you know, exhibit that, he will be allowed to see his daughter.” (AR 431.)

When asked how Petitioner would enforce Pasillas not having contact with E.M., Petitioner stated: “Supervised visits. You know, communication will be done with my mom and I just to ensure that he is sober and you know, I just want to make sure that he’s sober and my mom and I can communicate together and you know, drive him to see her at the park or something like that.” (AR 432.) Petitioner testified that Pasillas never visited her home. (Ibid.)

On August 10, 2020, ALJ Harrell issued a decision affirming Department’s rescission on the basis that Petitioner failed to notify County of her relationship with Pasillas and failed to act as a reasonable and prudent parent in her dealings with Pasillas. Harrell made the following findings, among others:

The evidence established that on May 7, 2019, Individual No. 1 was convicted of Penal Code section 245(a)(1)/Assault with a Deadly Weapon. The Respondent's testimony established that Individual No. 1 was incarcerated from August 2017 through December 2018 on a weapons-related charge.

As previously found, there is insufficient evidence that Individual No. 1 resided in and/or was regularly present in the Respondent's home.

The regulations governing RFA require the Respondent to notify the county of changes in her relationship status. As discussed in Factual Findings and Undisputed Facts, the Respondent had continuous contact and/or involvement with Individual No. 1 from January 2017 to the present, and failed to disclose her involvement with Individual No. 1 to the county. The evidence demonstrated that she applied for RFA in April 2018, her application was approved in June 2018, but she did not notify the county of her involvement with Individual No. 1 until April 30, 2019.

Notwithstanding the Respondent's statements to SW Nos. 1 and 2 that she intends to resume a personal relationship with Individual No. 1 upon his release from prison, the Respondent attempted to minimize the nature of her relationship with Individual No. 1. She described her involvement with him as "not a relationship, but sexual in nature." The Respondent's characterization of her relationship with Individual No. 1 is not credible, in light of her prior statements to the county that she intends to resume a relationship with him if he is committed to sobriety. Moreover, her history of contact with Individual No. 1 and expressed intent to resume a relationship with him after his release from prison is evidence their relationship was more than "sexual in nature."

A preponderance of the evidence shows the Respondent was not forthcoming to the county regarding her relationship with Individual No. 1, and that she failed to notify the county of her involvement with Individual No. 1 to maintain her RFA.

The Respondent is required to act as a reasonable and prudent parent. This standard requires the Respondent to make decisions that maintain Child No. 1 's health, safety, and best interests. Further, the county may rescind a Resource Family Approval for conduct that poses a risk or threat to the health and safety, protection, or well-being of a child. At the hearing, the Respondent stated that she did not believe she used poor judgment by her involvement with Individual No. 1. During the hearing, the Respondent testified that she was not concerned about Individual No. 1 spending time with their shared child, notwithstanding his conviction for a violent crime and history of substance abuse. In addition, the Respondent minimized the severity of Individual No. 1 's violent behavior when she explained that his criminal conduct was due to his abuse of alcohol. On April 30, 2019, the Respondent asked SW No. 2 whether her involvement with Individual No. 1 would affect her adoption of Child No. 1. This inquiry shows that Respondent knows or should have known that Individual No. 1 's conduct and criminal history poses a threat to Child No. 1 's health, safety, and best interests. The Respondent's belief that she did not use poor judgment with her involvement with Individual No. 1 shows her inability to perceive the risk that Individual No. 1 poses to Child No. 1. Consequently, the county is rightfully concerned about the welfare of Child No. 1.

It is determined that by her involvement with Individual No. 1, the Respondent failed to act as a reasonable and prudent parent. Additionally, in light of Individual No. 1's conviction of a violent crime, it is determined that Individual No. 1 poses a threat to the health, safety, and best interests of Child No. 1.

It should be noted that the determination as to the placement of the child is made by the Superior Court. This decision determines whether the Respondent is qualified as a Resource Family Approved home and eligible for funding as an approved home under state and federal law. (AR 145-147.)

On September 9, 2020, Petitioner filed a request for rehearing on the grounds that: (1) the County did not present evidence that as to why a Corrective Action Plan (CAP) was not implemented prior to its decision to rescind RFA funding outright; and (2) additional letters of reference for Petitioner were available and were not considered by the previous ALJ. (AR 4.) The request for rehearing was granted, and a rehearing was held telephonically on November 4, 2020, before ALJ Mariam Kaviani. (AR 4-5.) The rehearing was limited to the two specific issues raised in Petitioner’s request for rehearing. (AR 4-66, 81-82.)

On December 16, 2020, ALJ Kaviani issued a rehearing decision affirming the County's rescission of Petitioner’s RFA funding. (AR 64-66.)

On July 6, 2021, Petitioner filed her verified petition for writ of mandate pursuant to CCP sections 1094.5 and 1085. She also pleaded a cause of action for discrimination on the basis of sex in violation of Government Code section 11135.

On November 23, 2021, the court granted Petitioner’s motion for a stay of the administrative decision.

On July 21, 2022, Petitioner filed her opening brief in support of the petition. The court has received Respondents’ opposition, Petitioner’s reply, the administrative record, and the joint appendix.

The opposition was filed and served on August 23, 2022. Pursuant to the briefing schedule set on October 14, 2021, the opposition should have been filed and served 30 days before the hearing, or on August 22, 2022. Petitioner objects. (Reply 3.) Because Petitioner has not shown any prejudice, the court exercises its discretion to consider the late-filed opposition. However, Respondents’ counsel should explain at the hearing why the opposition was filed a day late.

Under CCP section 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).)

Because Petitioner’s public benefits concern a fundamental vested right, the court exercises its independent judgment on the record. (See Bixby v. Pierno (1971) 4 Cal.3d 130, 143 (Bixby); Frink v. Prod (1982) 31 Cal.3d 166 (1982); Lozano v. Unempl. Ins. Appeals Bd. (1982) 130 Cal.App.3d 749, 754.) 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, 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 (Morrison).) “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.)

The petitioner seeking administrative mandamus has the burden of proof and must cite to the administrative record to support her contentions. (See Alford v. Pierno (1972) 27 Cal.App.3d 682, 691.) 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; Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (2009) 180 Cal.App.4th 1, 14 [court does not serve as “backup” counsel].)

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ …. Interpretation of a statute or regulation is a question of law subject to independent review.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner contends that Respondents violated the law and Petitioner’s due process rights when they did not provide her an option of attending the initial hearing and rehearing by video conference. (OB 11-14; Reply 3-5.)

The inquiry under CCP section 1094.5(b) extends to whether Petitioner received a fair trial. “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240; see also Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 207-215.) A public agency “is bound by its own policies and procedures.” (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1078.)

Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.) “The question is whether the violation resulted in unfairness, in some way depriving [Petitioner] of adequate notice or an opportunity to be heard ….” (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497.)

Petitioner Does Not Show a Statutory Right to Video Conference or In-Person Hearing

Petitioner first contends that “California Department of Social Services regulations outlined in MPP §22-045” states that Petitioner was entitled to choose between a “telephonic hearing, video conference, or in-person hearing.” (OB 11; Reply 3-4.) Petitioner has not requested judicial notice or submitted a copy of MPP §22-045, as required for the court to judicially notice this policy manual. (See Cal. Rules of Court, Rule 3.1306(c); Evid. Code §§ 452(c), 453(a), (b).) Nor does Petitioner quote the full text in her brief. Even as presented by Petitioner, MPP §22-045 allows for telephonic hearings at the option of the claimant.

Petitioner also concedes in her brief that pursuant to “Governor Newsom’s Executive Order N-63-20, the CDSS suspended in-person hearings and required participants to attend telephonic hearings in lieu of in-person hearings.” (OB 11.) Petitioner has not requested judicial notice of EO N-63-20, submitted a copy, or quoted its full text. However, as paraphrased by Petitioner, EO N-63-20 expressly authorized DSS to conduct telephonic hearings as long as the parties have “an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe exhibits.” (OB 11.) The record shows that Petitioner had such opportunity.

Petitioner does not address the statutory scheme that governs state administrative hearings. The Welfare and Institutions Code establishes the right to a “state hearing” for beneficiaries of Department programs. (Welf. & Inst. Code § 10950(a).) As Respondents argue, state hearings held by Department of Social Services (“DSS”) are governed by the Administrative Procedure Act (“APA”). (See Gov. Code § 11410.10, § 11410.20 [APA applies to “all agencies of the state”].) Pursuant to Government Code section 11440.30 of the APA, the ALJ “may conduct all or part of a hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe exhibits.” While a telephonic hearing may not be held if a party objects (§ 11440.30(b))[1], Petitioner cites no evidence that she objected to a telephonic hearing. Moreover, the record shows that Petitioner had “an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe exhibits.”

Petitioner does not show that she was entitled to a video conference or in-person hearing pursuant to MPP §22-045 or any other statute or regulation.

Petitioner’s Rights to Due Process and a Fair Trial Not Infringed by Phone Hearing

Petitioner also contends that failing to offer her a video conference or in-person hearing violated her rights to due process. (OB 11-12.)

“‘The protections of procedural due process [also] apply to administrative proceedings; the question is simply what process is due in a given circumstance.’ (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90, 133 Cal.Rptr.2d 234.) Thus, due process is a flexible concept that requires protections appropriate to the particular situation.” (Rondon v. Alcoholic Beverage Control Appeals Bd. (2007) 151 Cal.App.4th 1274, 1284; see generally Mathews v. Eldridge (1976) 424 U.S. 319, 332-334.) “[A]t a minimum [due process] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” (Goss v. Lopez (1975) 419 U.S. 565, 579.)

Petitioner cites Goldberg v. Kelly (1970) 397 U.S. 254, which states that “consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” (Id. at 263.) More broadly, Goldberg stands for the proposition that the “fundamental requisite of due process of law is the opportunity to be heard” and that the hearing must be “at a meaningful time and in a meaningful manner.” (Id. at 267.)

Petitioner has not cited any case holding that it violates due process for an administrative hearing to be held telephonically. The record shows that Petitioner had notice and opportunity to respond to the charges that resulted in the loss of RFA funding. Petitioner did not object to the telephonic hearing procedure. Accordingly, Petitioner’s due process rights were satisfied.

Application of factors from Goldberg does not appear necessary for the circumstances of this case. However, even if the court applies Goldberg, the court reaches the same conclusion – due process was met. While Petitioner has a significant private interest in RFA funding, Petitioner has not shown any non-speculative reason to believe that a telephonic hearing presented a meaningful risk of depriving her of a fair trial. The ALJs could reasonably assess Petitioner’s credibility in a telephonic hearing. Notably, the ALJs’ findings with regard to Petitioner’s credibility were based, in substantial part, on conflicts between her prior statements to County, which are documented in the written record. (AR 133-134.) Respondents also had countervailing interests in conducting telephonic hearings in August and November 2020, at the start of the Covid-19 pandemic and as reflected in the Governor’s order, EO N-63-20.

For the first time in reply, Petitioner argues that “due process was also not afforded to Ms. Mekan throughout the termination process.” (Reply 5.) In particular, Petitioner contends: “Los Angeles County provided two Corrective Action Plans that did not meet the requirements of the Written Directives, as each failed to list the statute, regulation or Written Directive that applies, fails to state the manner in which the Resource Family failed to conform to the statute, regulation, or Written Directive, and failed to list the date of the follow up visit to determine compliance with the Corrective Action Plan, (AR 175-176). These Corrective Actions Plans failed to provide Ms. Mekan with due process to understand the actions being taken against her ….” (Reply 5.)

This argument was not pleaded in the petition or raised in the opening brief. “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) This action has been pending since July 2021, and the trial date was set in October 2021. Petitioner does not show good cause to raise an entirely new argument in reply. The court denies this argument on procedural grounds because it was not properly raised in the petition or opening brief.

Based on the foregoing, Petitioner received a fair trial and her due process rights were not violated.

Petitioner contends that the administrative decisions do not comply with the Topanga findings requirement. (OB 14-15; Reply 7.)

Under CCP section 1094.5(b), an abuse of discretion is established if the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).) In Topanga Assn. for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 515, the Supreme Court held that "implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order." (11 Cal. 3d at 516-517 [fns. Omitted].)

“Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954.) The agency's findings may “be determined to be sufficient if a court has no trouble under the circumstances discerning the analytic route the administrative agency traveled from evidence to action.” (West Chandler Blvd. Neighborhood Ass’n vs. City of Los Angeles (2011) 198 Cal.App.4th 1506, 1521-22.) “The nature of the statute, ordinance, or rule being applied by that agency is also relevant to the analysis of the adequacy of an administrative agency's findings.” (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421 [City's findings satisfied Topanga].)

Here, ALJs Harrell and Kaviani issued detailed, written decisions that summarized the evidence and law, and the ALJs’ findings and conclusions. (AR 4-66, 128-147.) For the most part, Petitioner and the court can sufficiently understand the evidence upon which the ALJs relied.

Petitioner primarily challenges the fact findings and legal conclusions of ALJ Harrell. Petitioner contends that “the ALJ does not provide any Topanga-required analysis on how Ms. Mekan’s contact with Individual No. 1 is conduct covered by the codified reasonable and prudent parent standard.” (OB 14.) The court disagrees. ALJ Harrell’s decision sufficiently shows the evidence upon which the ALJ relied, and the mode of analysis, for the findings that Petitioner failed to act as a reasonable and prudent parent in her involvement with Pasillas. (AR 128-134, 145-147.)

Petitioner also contends that ALJ Harrell’s decision does not comply with Topanga for the finding that Petitioner made false or misleading statements to DCFS related to her relationship with Pasillas. (OB 15.) The court agrees. As further discussed below, ALJ Harrell did not sufficiently explain why she found that Petitioner had any legal duty under the RFA program to inform County of her relationship with Pasillas prior to April 30, 2019.

The court concludes that the decisions comply with Topanga, except as to Petitioner’s duties of disclosure, which are further analyzed below.

Petitioner contends that ALJ Harrell failed to explain how Petitioner’s “failure to disclosure her contacts with Individual No. 1 adds up to the commission of false or misleading statements to DCFS.” (OB 15.) The court agrees. Notably, Respondents do not address the point in opposition and thereby concede it. (Oppo. 12-13; Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

ALJ Harrell found that “[a] preponderance of the evidence shows the Respondent was not forthcoming to the county regarding her relationship with Individual No. 1, and that she failed to notify the county of her involvement with Individual No. 1 to maintain her RFA.” (AR 147 [bold italics added]; see also AR 134 [discussing failure to disclose relationship with Pasillas].) As this finding is phrased, ALJ Harrell found that Petitioner violated some duty of disclosure in the RFA program by failing to notify County in sufficient time about her relationship with Pasillas. However, ALJ Harrell does not identify the disclosure obligation that she found Petitioner to have violated. Although the ALJ also stated that Petitioner “provided false or misleading statements … to maintain her RFA," the ALJ did not identify any false or misleading statements in Petitioner’s interactions with social workers, but rather cited Petitioner’s alleged failure to disclose the relationship with Pasillas prior to April 30, 2019. (AR 134.)

In the Conclusion section, ALJ Harrell stated generically that, every 12 months, the County shall complete an update for a Resource Family, “when a significant change has occurred in the Resource Family’s circumstances or there is a change in marital or domestic partnership status, or a change in a relationship with a significant other.” (AR 145.) As Petitioner points out, the ALJ appears to refer in part to Written Directives, Section 9-02(d)(4)(B), which is quoted in ALJ Kaviani’s decision. (OB 15-16; see AR 53.) Section 9-02(d)(4)(B) does not define “significant other.”

ALJ Harrell did not find or conclude in her decision, at least not expressly, that Pasillas was Petitioner’s “significant other.” Respondents concede this in opposition, stating: “ALJ Harrell did not conclude that Mr. Pasilas was petitioner’s ‘significant other’.” (OB 12:22, citing AR 145-146.) Even without the concession, Respondents fail to develop any argument that ALJ Harrell impliedly found Pasillas to be a “significant other” of Petitioner, so that section 9-02(d)(4)(B) applied.

Nor did ALJ Harrell conclude that Pasillas was regularly present in Petitioner’s home, which could have triggered disclosure duties under section 9-02 or section 11-06 of the Written Directives. (See AR 144 [§ 11-06].) Instead, ALJ Harrell concluded that “there is insufficient evidence that Individual No. 1 resided in and/or was regularly present in the Respondent's home.” (AR 146.)

As Respondents point out, ALJ Harrell made the following credibility determination in support of the finding that Petitioner was required to disclose her relationship with Pasillas prior to April 30, 2019: “Respondent's characterization of her relationship with Individual No. 1 is not credible, in light of her prior statements to the county that she intends to resume a relationship with him if he is committed to sobriety. Moreover, her history of contact with Individual No. 1 and expressed intent to resume a relationship with him after his release from prison is evidence their relationship was more than ‘sexual in nature.’” (AR 146-147; see Oppo. 12-13.) Thus, ALJ Harrell seems to have found that Petitioner had a dating or romantic relationship with Pasillas that was “more than sexual,” but she did not find that the relationship was that of a “significant other.” For the finding of false or misleading statements, this credibility determination is only relevant if Petitioner had some legal obligation in the RFA program, prior to April 30, 2019, to disclose to County a relationship of the type she had with Pasillas.

Since ALJ Harrell did not find Pasillas to be a significant other of Petitioner, or to be regularly present in her home, the legal duty of disclosure found by ALJ Harrell is unclear. The ALJ did not specify any written directive or regulation that imposed a duty of disclosure on Petitioner under the circumstances of this case. In opposition, Respondents also do not identify any legal duty of disclosure that applied to Petitioner given the facts found by the ALJ. (Oppo. 12-13.) While it does not seem unreasonable for county to expect Petitioner to disclose her relationship with Pasillas, a person with a violent criminal history, the court cannot determine from the decision or the parties’ briefing if a duty of disclosure is found in the relevant directives or regulations.

Counsel should further address these issues at the hearing. The court tentatively concludes that ALJ Harrell’s decision does not comply with Topanga, and that her findings do not support the decision, because ALJ Harrell did not identify any legal duty of disclosure that required Petitioner to inform county of her relationship with Pasillas prior to April 30, 2019. Nor did ALJ Harrell make any findings about a specific legal duty of disclosure that applies to the RFA program. The court must review the findings made by the ALJ and cannot make its own findings on writ review. (See CCP § 1094.5(b).)

Because ALJ Harrell did not find Pasillas to be a significant other, or identify any other duty of disclosure, the court does not decide at this time whether the weight of the evidence supports the ALJ’s findings that Petitioner violated any duties under the RFA program by failing to disclose her relationship with Pasillas to county prior to April 30, 2019.

Petitioner argues that her relationship with Pasillas, as found by ALJ Harrell, does not implicate the reasonable and prudent standard because the relationship did not involve a determination of the day-to-day activities of E.M. or the selection of a babysitter. (OB 14:14:21-28.) Petitioner raises an issue of statutory construction.

“The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)

When interpreting a statute, the court must construe the statute, if possible to achieve harmony among its parts. (People v. Hull (1991) 1 Cal. 4th 266, 272.) “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.)

A family that is approved for RFA must demonstrate “[a]n understanding of children's needs and development, effective parenting skills or knowledge about parenting, and the capacity to act as a reasonable, prudent parent in day-to-day decisionmaking.” (Welf. & Inst. Code, § 16519.5(c)(1)(B).) The Department conducts periodic assessments of resource families to ensure that they are complying with the applicable statutes and regulations. (Welf. & Inst. Code, § 16519.5(c)(8).)

As noted by Petitioner, the “reasonable and prudent parent standard” is discussed in other dependency statutes in the Welfare and Institutions Code, including sections 361.2, 362.05, and 362.04. (OB 14.) Section 362.05(c)(1) defines “reasonable and prudent parent” or “reasonable and prudent parent standard” as “the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child while at the same time encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child in foster care under the responsibility of the state to participate in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities.” ALJ Harrell cited part of this definition from section 362.05 in her decision. AR 136.)

However, Petitioner does not show that section 362.05 restricts the reasonable and prudent parent standard, for purposes of the Resource Family, to a determination of which activities are appropriate for the dependent child.

ALJ Harrell’s decision also refers to a definition of “reasonable and prudent parent standard” in RFA Written Directives, Ver. 6.1, § 3-01. (AR 136.) Neither party submits a copy of this Written Directive. However, Petitioner quotes the definition in reply as follows: “‘Reasonable and prudent parent standard’ means the careful and sensible parental decisions that maintain a child’s health, safety, and best interests, while at the same time encouraging the emotional and developmental growth of the child, as defined in Welfare and Institutions Code section 362.05.” (Reply 9 [bold italics added].) In addition to the definition from section 3-01, the Written Directives, section 11-12 also discusses responsibilities of the Resource Family to apply “the reasonable and prudent parent standard, as defined in Section 3-01, and as specified in this section, in providing care and supervision to a child.” (bold italics added.) Petitioner discusses and quotes from section 11-12 in reply. (Reply 9-10.)[2]

Contrary to Petitioner’s assertion, Written Directives sections 3-1 and 11-12 do not limit the reasonable and prudent parent standard, in the RFA program, to a determination of the appropriate day-to-day activities of the dependent child or the selection of a babysitter. Rather, the plain language of these directives broadly requires the parent to make “careful and sensible parental decisions that maintain a child’s health, safety, and best interests.”

Petitioner also has not developed a persuasive argument for a narrow interpretation of the reasonable and prudent parent standard as used in section 16519.5(c)(1)(B). That statute requires the Resource Family to show a “capacity to act as a reasonable, prudent parent in day-to-day decisionmaking.” (Welf. & Inst. Code, § 16519.5(c)(1)(B).) There is no restriction in the statute to a determination of the appropriate activities for the child or selection of a babysitter.

The court “must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246.) Under Petitioner’s interpretation, a Resource Family member’s relationship with a person with a violent criminal history would not fall within the reasonable and prudent parent standard that applies to the RFA program. Petitioner’s interpretation of section 16519.5(c)(1)(B) does not promote the purposes of the RFA statutory scheme.

The Weight of the Evidence Supports the Finding that Petitioner Did Not Act as a Reasonable and Prudent Parent in her Involvement with Pasillas

Petitioner also contends that “the ALJ erroneously concluded that merely having a relationship with Individual No. 1 poses a risk to the health, safety, and best interests of E.M. in violation of the reasonable and prudent parent standard.” (OB 14.) Exercising its independent judgment on the record, the court concludes that the weight of the evidence supports the ALJ’s findings that Petitioner failed to act as a reasonable and prudent parent in her involvement with Pasillas. (See AR 146-147 [findings].)

ALJ Harrell found that Pasillas was convicted of assault with a deadly weapon on May 7, 2019. He was incarcerated on a weapons-related charge from August 2017 to December 2018. (AR 146.) Petitioner has not challenged those findings. It is undisputed that Petitioner knew of Pasillas’ criminal history during all of their relationship, which started in January 2017. (See e.g. AR 133-34, 431-433.) The evidence also supports that Petitioner knew Pasillas had issues with alcoholism. (AR 288-89; AR 431-33.)

Petitioner does not dispute that, as a general matter, Pasillas’ criminal history creates risks for the health, safety, and bests interests of E.M. Rather, Petitioner contends that she reasonably considered and addressed these risks by: (1) not allowing Pasillas to be regularly present in the home where E.M. lives; (2) only visiting Pasillas outside her home and when a babysitter watched E.M.; and (3) deciding “to prevent Individual No. 1 from future contact with E.M. but allow supervised visitation for their shared child.” (OB 15.) Petitioner also suggests that the risks to E.M. were mitigated because her relationship with Pasillas was “sexually-driven.” (AR 431; see OB 14-17; Reply 8-9.)

Exercising its independent judgment, the court concludes that the ALJ reasonably considered such issues and that the weight of the evidence supports the findings that Petitioner knew or should have known that her involvement with Pasillas posed a threat to E.M.’s health, safety, and best interests. (AR 147.)

The weight of the evidence supports the ALJ’s finding that Petitioner was not credible when she characterized her relationship with Pasillas as purely “sexually-driven.” (AR 146-147.) Petitioner had a romantic relationship with Pasillas starting in January 2017. Petitioner rekindled her relationship with Pasillas in January or February 2019, after he was released from prison. (AR 433.) The timeline shows an “off-and-on” but relatively lengthy romantic relationship.

Petitioner’s statements in the record also undermine her assertion of a purely sexually driven relationship. On April 30, 2019, Petitioner stated that she kept in contact with Pasillas after he was incarcerated in August 2017. (Ibid.; see also AR 401-402 and 433-435 [testimony re: Petitioner’s contact with Pasillas while he was incarcerated].) She also stated that she would consider a relationship with Pasillas after he is released from prison if he commits to sobriety. (AR 288-89.) On cross-examination at the hearing, Petitioner acknowledged regular and sometimes “daily” communication with Pasillas while he was incarcerated. (AR 434.) On July 3, 2019, Petitioner reportedly stated that “she will never agree to not have contract with [Pasillas] as he is the father of her daughter but she will make sure that he is sober before he is allowed in the home.” (AR 290.) At a child family team meeting held on January 23, 2020, Petitioner reportedly stated that she was then in a relationship with Pasillas and they would continue the relationship once he is released from prison as they have a daughter together. (AR 290.) Petitioner’s testimony also shows her intention to have ongoing involvement with Pasillas. While Petitioner denied plans for a continued romantic relationship with Pasillas, she maintained her commitment to “co-parenting” with him. (AR 431.)

The weight of the evidence also supports the ALJ’s finding that Petitioner failed to act as a reasonable and prudent parent, despite the lack of evidence that Pasillas regularly visited her home. Notwithstanding Petitioner’s plan for “supervised visits” between her daughter and Pasillas (see AR 432), the ALJ could reasonably infer from the evidence, summarized above, that the ongoing involvement of Pasillas in Petitioner’s life, including a co-parenting relationship, would necessarily risk contact between Pasillas and E.M. Because of Pasillas violent criminal history, the weight of the evidence supports the finding that Petitioner did not adequately consider this risk and its impact on the health, safety, and best interests of E.M. (AR 147.)

The weight of the evidence supports the findings that “by her involvement with Individual No. 1, [Petitioner] failed to act as a reasonable and prudent parent” and that “in light of Individual No. 1's conviction of a violent crime, … Individual No. 1 poses a threat to the health, safety, and best interests of Child No. 1.” (AR 147.)

Subject to argument on the issues outlined above, the first cause of action for writ of administrative mandate is GRANTED IN PART. The court tentatively concludes that ALJ Harrell’s decision does not comply with Topanga, and that her findings do not support the decision, because ALJ Harrell did not identify any legal duty of disclosure that required Petitioner to inform county of her relationship with Pasillas prior to April 30, 2019. Nor did ALJ Harrell make any fact findings about a specific legal duty of disclosure that applies to the RFA program.

In all other respects, the first cause of action for writ of administrative mandate is DENIED. Petitioner received a fair trial and her due process rights were not violated. The weight of the evidence supports the findings that “by her involvement with Individual No. 1, [Petitioner] failed to act as a reasonable and prudent parent” and that “in light of Individual No. 1's conviction of a violent crime, … Individual No. 1 poses a threat to the health, safety, and best interests of Child No. 1.” (AR 147.)

The court cannot determine whether Respondents would have reached the same result with respect to rescission of Petitioner’s RFA funding without the findings that Petitioner made false and misleading statement by not informing county of her relationship with Pasillas until April 30, 2019. Accordingly, the court will remand to Respondents for reconsideration and further proceedings not inconsistent with the court’s ruling. (CCP § 1094.5(f).)

In her third cause of action, Petitioner alleges, inter alia that: “Respondents unlawfully discriminated against Petitioner by finding that having a relationship with a male individual outside of the home, who she did not disclose to DCFS as he was never regularly present in the home was a ‘lack of good judgement’ and a failure to act as a reasonable and prudent parent. No similarly situated Resource Family with a male caregiver would have been evaluated as such.” (Pet. ¶ 62.)

In her opening brief, Petitioner similarly argues, as follows: “No similarly situated Resource Family with a male caregiver would have been evaluated in this way. The ruling that Ms. Mekan failed to meet the reasonable and prudent parent standard is incorrect, and the record highlights the discriminatory way the ruling was reached, which violated Gov. Code, §11135.” (OB 18.)

Government Code section 11135 prohibits discrimination in a state “program or activity.” (Gov. Code § 11135(a).) Respondents acknowledge that they have a duty to operate the RFA program free from discrimination. (Oppo. 15.)

Respondents contend that “[t]here is nothing in the record suggesting that [the ALJs’] conclusions would have differed if petitioner were a man in a relationship with a convicted felon.” (Oppo. 15.) The court agrees that Petitioner has not proven her discrimination claim for this reason. To establish a claim for discrimination under section 11135, Petitioner must show unlawful different treatment of similarly situated groups of persons. (See Woods v. Horton (2008) 167 Cal.App.4th 658, 678.) Petitioner has not cited any evidence in the record that Respondents have treated a similarly situated man differently than Petitioner was treated in this case. There is no evidence that a man who receives RFA funding, and who is in a romantic, sexual, and/or co-parenting relationship with a convicted felon, has been or would be treated any differently. Petitioner’s discrimination claim is speculative and not supported by the record.

In the second cause of action for writ of ordinary mandate, Petitioner alleges generally that “Respondents are willfully failing to perform their public duty to fully and fairly administer the Resource Family Approval program and state hearings … in accordance with governing statutes, regulations, and rules.” (Pet. ¶ 57.) Petitioner does not address this claim at all in her opening and reply briefs. Indeed, she states that the petition is governed by CCP section 1094.5. (OB 14.) Because Petitioner fails to develop an argument for ordinary mandate, the second cause of action is DENIED. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [argument forfeited if not raised or adequately briefed]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].)

The first cause of action for writ of administrative mandate is GRANTED IN PART and DENIED IN PART, as stated above. The court tentatively concludes that ALJ Harrell’s decision does not comply with Topanga, and that her findings do not support the decision, because ALJ Harrell did not identify any legal duty of disclosure that required Petitioner to inform county of her relationship with Pasillas prior to April 30, 2019. Nor did ALJ Harrell make any factual findings about a specific legal duty of disclosure that applies to the RFA program.

The court will remand to Respondents for reconsideration and further proceedings not inconsistent with the court’s ruling. (CCP § 1094.5(f).)

Petitioner is ordered to prepare, lodge, and serve a proposed form of judgment and a proposed form of writ in accordance with local rule 3.231(n).

[1] Although not addressed by either party, the Governor’s EO N-63-20 may supersede this rule. The court need not decide the issue.

[2] Because both sides refer to the regulations in their briefs, the court judicially notices the RFA Written Directives from the website of the Department of Social Services. (See https://www.cdss.ca.gov/inforesources/resource-family-approval-program.)