Judge Mitchell L. Beckloff, Case 21STCP02740 2022-07-29 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP02740, Date: 2022-07-29 Tentative Ruling

Petitioner, Maryann L., through her mother and guardian ad litem Amparo Lezama (Mother), seeks a court order compelling Respondent, the California Department of Social Services (the Department) to set aside its September 14, 2020 decision, upholding the decision of the Los Angeles County Department of Social Services (the County) denying Petitioner’s request for protective supervision services through the state’s In-Home Supporting Services (IHSS) program.

Petitioner alleges the Department failed to proceed in the manner required by law as it misinterpreted the law. (Petition ¶ 5.) Petitioner also contends the Department’s decision is “against the weight of the evidence under the independent judgment test.” (Id. ¶ 6.)

Petitioner’s unopposed request for judicial notice (RJN) of Exhibits A through E is granted.

“In 1973, the Legislature enacted the IHSS program to enable aged, blind or disabled poor persons to avoid institutionalization by remaining in their homes with proper supportive services. [Citation.]” (Basden v. Wagner (2010) 181 Cal.App.4th 929, 933 (Basden); Marshall v. McMahon (1993) 17 Cal.App.4th 1841, 1844 (Marshall).) “The Legislature authorized a broad range of support services to eligible persons.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 868 (Miller).)

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, subd. (a).)

“Supportive services shall include domestic services and services related to domestic services, heavy cleaning, personal care services, accompaniment by a provider when needed during necessary travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, teaching and demonstration directed at reducing the need for other supportive services, and paramedical services which make it possible for the recipient to establish and maintain an independent living arrangement.”

Applicants must satisfy two eligibility conditions to obtain any IHSS service: First, they must be “unable to perform the services themselves.” (Welf. & Inst. Code, § 12300, subd. (a).)

Second, the applicant must be unable to “safely remain in [the] home[] or abodes of [his or her] own choosing unless these services are provided.” (Ibid.)

To determine whether a person needs help with tasks covered by an IHSS service (Welf. & Inst. Code, § 12301.2, subds. (a)-(b); MPP § 30-757.1, subd. (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, subd. (a); MPP § 30-761.1.)

Trained county social workers determine which supportive services a recipient needs, and the number of hours a recipient will receive for each authorized service, by using a uniform needs assessment tool. (Welf. & Inst. Code, §§ 12305.7, subd. (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” – finding a person needs no help performing the tasks – to “rank 5” – finding 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 area except protective supervision. (MPP § 30-757.1, subd. (a).)

Protective supervision is a benefit offered through the IHSS program. (Welf. & Inst. Code, § 12300, subd. (b).) “Protective supervision” consists of observing recipient behavior and intervening as appropriate in order to safeguard the recipient against injury, hazard, or accident.” (MPP § 30-757.17.) “Protective Supervision is available for observing the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons only.” (MPP § 30-757.171.)

To obtain protective supervision services an applicant must be “nonself-directing, confused, mentally impaired, or mentally ill” (MPP § 30-757.171) and “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, subd. (a).) Such persons must be unable to “protect themselves from injury.” (Miller, supra, 148 Cal.App.3d at p. 869.)

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 relevant factors could include the living environment, age, lack of injuries and parental absence, and/or fluctuation in needs. (Welf. & Inst. Code, § 12301.1.) The need for around-the-clock supervision hinges on whether the applicant would engage in potentially dangerous behaviors if he/she did not have 24-hour supervision. (MPP §§ 30- 756.372, 30-757.171; Calderon v. Anderson (1996) 45 Cal.App.4th 607, 615, 616 (Calderon); Marshall, supra, 17 Cal.App.4th at pp. 1852-53.)

As the need for 24-hour supervision is a condition to qualify for protective supervision, the law requires social services staff to request “that a person requesting protective supervision submit [medical] certification to the county.” (Welf. & Inst. Code, § 12301.21.) This certification is on a standardized form of the Department (SOC 821) to be completed by a physician or other qualified medical professional. (MPP § 30-757.173, subd. (a)(1).) Additionally, another standardized form (SOC 873) is a medical certification form completed 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, subd. (a)(1)(A)(3).) Other pertinent information such as the social worker’s interview with the recipient is included as part of the overall needs assessment. (MPP § 30-757.173, subd. (a)(1)(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 services. (MPP § 30-757.173.)

The Department established requirements counties must follow in assessing a mentally impaired person’s need for protective supervision services. (ACL No. 15-25[2], pp. 2-3.) The mentally impaired person must satisfy the following three requirements to qualify for protective supervision services: (1) be mentally impaired/ill; (2) be nonself-directing due to a mental impairment/illness; and (3) likely to engage in potentially dangerous activities that may cause self-harm. (Ibid.)

Protective supervision benefits are not routinely offered but are offered where there is a constant, 24 hour-a-day-need need. (MPP § 30-757.173, subd. (a).) Predictable risks are not included. If the behavior in question is considered predictable, and the need for supervision is during certain times of the day, there is no protective supervision eligibility because a 24 hour-a-day need does not exist:

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.)

At the time of the Department denied her IHSS protective supervision benefits, Petitioner was 20-years old. Petitioner has been diagnosed with Down syndrome, mild mental delay and speech impairment. (AR 3, 134.)

Petitioner has received IHSS services, under the Personal Care Services Program, since October 2014. Petitioner has never been authorized to receive protective supervision benefits. (AR 3.)

On June 20, 2019, a County social worker conducted Petitioner’s annual reassessment. The social worker’s reassessment resulted in the County denying Petitioner protective supervision benefits. (AR 3, 304.)

Petitioner resides with Mother, her father, and her brother. (AR 3.) Mother is also Petitioner’s IHSS provider. (Ibid.)

On July 9, 2019, Mother filed a request for a state hearing challenging the denial of protective supervision benefits for Petitioner. (AR 3.)

On November 7, 2019, the County and Mother agreed to a conditional withdrawal of the hearing request so that the County could conduct a reassessment of Petitioner’s need for protective supervision benefits, effective June 20, 2019. (AR 3, 305.)

On December 11, 2019, the County, through social worker Monica Jeffries, conducted a home visit and reassessment of Petitioner’s needs. (AR 3.) Jeffries’ visit lasted approximately one hour. (AR 327, 486.) During the reassessment, Petitioner, Mother and Shirley Rosen, an authorized representative from IHSS Advocates, were present. (AR 327-332 [assessment report], 478-493 [Jeffries’ testimony], 545-558 [Jeffries’ testimony].)

Jeffries arrived at Petitioner’s home, and Petitioner followed Mother’s instructions to come to the living room. (AR 327, 478.) Petitioner told Jeffries she does not cook; her mother cooks for her. (AR 327, 479.) Petitioner was able to answer some of Jeffries’ questions, including her name, age, phone number, address, current date and time, and name of her school and teacher. (AR 479, 486.) After being asked what dangerous behaviors Petitioner exhibited, Mother identified Petitioner eloped into the backyard pool area one time and attempts to elope from home. (AR 327, 479.) In response to Petitioner’s behavior, Mother installed a video camera and alarm on the doors to alert Mother whenever any door in the house is open. (AR 327.)

On January 10, 2020, the County sent Petitioner a notice of action (NOA), which provided her with 41 hours and 50 minutes per month of in-home supportive services, but it denied Petitioner any protective supervision services benefit. (AR 313-320.) The County did so reasoning Petitioner “does not pose a threat to herself or others and that she can remain safely in her home without protection supervision benefits.” (AR 311.)

On March 24, 2020, Mother filed a request for a state hearing challenging the County’s denial of protective supervision benefits for Petitioner. (AR 3, 306.)

On June 4, 2020, the County sent another NOA. The NOA advised it authorized an additional 4 hours and 59 minutes per month of in-home supportive services, but it denied any protective supervision services benefits to Petitioner. (AR 321-324.)

On August 28, 2020, an administrative law judge (ALJ) conducted the state hearing requested by Mother. (AR 455-560 [transcript].)

In addition to documentary evidence, the ALJ heard from two witnesses, Jeffries and Mother. (AR 478-493 [Jeffries’ testimony], 545-558 [Jeffries’ testimony], 508-538 [Mother’s testimony].)

Jeffries testified about her assessment and observations of Petitioner. Jeffries explained she concluded Petitioner did not display any behaviors warranting protective supervision services. Jeffries observed Petitioner was able to follow all her mother’s commands and was able to answer most of Jeffries’ questions (i.e., name, age, phone number, address, current date and time). (AR 478-479, 488.)

Jeffries also acknowledged that according to Mother, Petitioner “elopes/wanders,” but there was no documentation supporting the frequency of such acts. In addition, documentation revealed Petitioner takes the bus to school without her own aide. (AR 327, 341, 480; see also Opposition 9:2-12, 10:19-27 [summarizing testimony regarding other documentation showing lack of support for this issue and/or Petitioner has improved with respect to this issue].) Jeffries also found the installation of the video camera and alarm was a sufficient environmental change combined with Petitioner’s infrequent elopement to justify the denial of protective supervision services. (AR 479-480, 488.)

Mother testified Petitioner engaged in the following behavior that demonstrate a need for protective supervision benefits: (1) Petitioner turned on the gas stove knobs allowing gas to leak while Mother was in the shower (AR 511-512); (2) Petitioner used to open cabinets and put cleaning powder, specifically Ajax, on her skin, though those dangerous substances have been moved into a garage Petitioner cannot access (AR 512, 520); (3) Petitioner sometimes opens house doors and wants to go for a walk alone (AR 512); and (4) Petitioner plays with stove knobs once or twice a week, though less frequently than before (AR 513-514, 518). Mother also testified the main reason protective supervision services are needed is because Petitioner tries to leave the house frequently, though Petitioner only did so twice the week before the assessment. (AR 522-527.) Mother stated Petitioner only tried to elope from school once approximately two or three years ago. (AR 537.)

On September 14, 2020, the ALJ issued a decision. (AR 2-25.) In the decision, the ALJ concluded: (1) Petitioner had a mental impairment (AR 21); (2) Petitioner had moderately impaired memory, orientation, and judgment and that she was “self-directing” (AR 22); (3) none of Petitioner’s dangerous behaviors warranted protective supervision because they were either predictable, infrequent, not dangerous, or had been eliminated by environmental modifications (AR 23-25; see also Opposition 11:27-12:6 [summarizing key conclusions]).

On September 14, 2020, the Department adopted the ALJ’s decision. (AR 2, 134.)

Petitioner seeks relief through the petition pursuant to Code of Civil Procedure section 1094.5.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision 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 respondent 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. (Code Civ. Proc., § 1094.5, subd. (b).)

There are two possible forms of review: (1) independent judgment; or (2) substantial evidence. (Id., subd. (c).) Code of Civil Procedure section 1094.5 does not specify which cases are subject to independent review, leaving that issue to the courts. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811 (Fukuda).) In cases reviewing decisions which affect a vested, fundamental right, the trial court exercises independent judgment on the evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) In all other cases, the court determines whether the findings are supported by substantial evidence in light of the whole record. (See Code Civ. Proc., § 1094.5, subd. (c).)

The parties advise that the court should apply its independent judgment in reviewing the underlying administrative decision. The court agrees. (Ruth v. Kizer (1992) 8 Cal.App.4th 380, 385.)

Evidence Code section 664 creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘. . . otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed’ prejudicial abuse of discretion.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) This presumption of correctness includes giving great weight to the agency’s credibility determinations even where the standard of review is independent judgment. (Fukuda, supra, 20 Cal.4th at 819.)

For the independent judgment standard, pursuant to Code of Civil Procedure section 1094.5, subdivision (c), the court decides whether the weight of the evidence supports the administrative findings (rather than whether substantial evidence supports the findings). Thus, a trial court “ ‘not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence.’ ” (Id. at 816, fn. 8.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.)

Petitioner challenges the Department’s decision (through the ALJ) on two grounds. First, she argues the ALJ should not have used “nonself-directing” as a separate eligibility requirement for protective supervision services. Second, Petitioner argues the decision is not supported by the findings.[3]

To qualify for protective supervision, Petitioner must satisfy the standards set forth above. Such standards include a showing that the constant 24 hour-a-day need for supervision is necessary because Petitioner “cannot protect [herself] from injury.” (Miller, supra, 148 Cal.App.3d at 869.)

Petitioner argues the ALJ went too far and required her to prove a non-existent requirement. Petitioner asserts the ALJ’s consideration of whether Petitioner’s behavior was “nonself-directing” as a separate eligibility requirement is unsupported by statute, regulation, or judicial decision. The court agrees.

The Department argues its regulation (MPP section 30-757.171) has two conditions required for the award of protective supervision benefits, one of which is that “the person is ‘nonself-directing, [and] confused, mentally impaired, or mentally ill.” (See also ACL No. 15-25, p. 2. [“In addition to all other relevant eligibility criteria, a person must be both mentally impaired or mentally ill and nonself-directing to be eligible for Protective Supervision.”].) Therefore, pursuant to the Department’s own regulations, nonself-directing is a necessary eligibility requirement. The court disagrees.

The Department misreads the plain language of the regulation by ignoring the punctuation. The applicable regulation states:

The Department misreads the express regulation, which states in pertinent part as follows:

.171 Protective Supervision is available for observing the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons only. (MPP § 30-757.171 [emphasis added].)

The regulation uses the disjunctive word “or” which separates categories of applicants. “Such use of the word ‘or’ in a statute indicates an intention to use it disjunctively so as to designate alternatives or separate categories.” (White v. County of Sacramento (1982) 31 Cal.3d 676, 680.) Under the regulation, the focus “is whether, at the time of the []assessment, any basis existed for determining that [Petitioner] was likely to engage in potentially dangerous conduct due to non-self-direction, confusion or mental impairment.” (Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 754 (Norasingh).) The issue is not whether the applicant is nonself-directing; it is whether the applicant is likely to engage in potentially dangerous conduct, and if so, why. The issue is whether the danger is related to mental deficiencies.

After finding an applicant is likely to engage in potentially dangerous conduct because the applicant does not self-direct, is confused, mentally impaired or mentally ill, the Department must assess need and whether 24-hours a day supervision is necessary to protect an applicant from potentially dangerous conduct.

.173 Protective Supervision is only available under the following conditions as determined by social service staff:

(a) At the time of the initial assessment or reassessment, a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely.
. . .

(b) At the time of reassessment of a person receiving authorized Protective Supervision, the county social service staff shall determine the need to renew the form SOC 821 (3/06). (MPP § 30-757.173 [emphasis added].)

The Department contends it reads the regulation as it does because of certain decisions of the Court of Appeal. The Department stresses that courts have otherwise upheld this eligibility requirement. (See Opposition 13:5-16:4 [discussing Marshall, Calderon and Norasingh].) The Department contends under principles of stare decisis the court is required to follow such decisions. (Id. 17:9-19.)

The Department, however, relies on the cases for propositions that were not considered.
Marshall and Calderon did not hold that “nonself-directing” is a separate eligibility condition for protective supervision. The cases did not involve the interpretation of MPP section 30-757.171 used by the Department here. (Reply 2:11-22.) Although Calderon broadly states that nonself-direction is a requirement for protective supervision services, the context concerned whether an applicant must be physically able to engage in potentially dangerous activities. (Calderon, supra, 45 Cal.App.4th at 616.) In addition, Miller affirmed a trial court decision wherein it described the trial court as having “concluded protective supervision is ‘the unskilled observation of non-self directing or otherwise mentally impaired persons who cannot observe their own behavior or surroundings and who are at risk of harm.” (Miller, supra, 17 Cal.App.4th at 1846-1847.) Calderon quoted that language from Miller in discussing what an applicant must demonstrate to receive supportive services.

The court recognizes it ordinarily must give great weight and deference to the Department’s interpretation of its own regulations. (Calderon, supra, 45 Cal.App.4th at 612-613.) “ ‘Generally, an agency's interpretation of its own regulation is entitled to considerable judicial deference. [Citation.] Indeed, the agency's construction generally controls unless it is clearly erroneous or inconsistent with the plain language of the regulation. [Citation.] But the principle of deference is not without limit; it does not permit the agency to disregard the regulation's plain language. [Citation.]’ [Citation.]” (Ortega v. Johnson (2020) 57 Cal.App.5th 552, 564.)

The plain language of the regulation does not support the ALJ’s interpretation (or that of All-County Letter No. 15-25) requiring an applicant for protective services to show he or she is nonself-directing and mentally impaired or mentally ill. Accordingly, the court finds the ALJ (and the Department) applied an improper eligibility requirement of “nonself-directing” to the exclusion of “confused, mentally impaired, or mentally ill persons” under MPP section 30-757.171. (AR 20.)

While the ALJ misinterpreted MPP section 30-757.171, the ALJ also evaluated the County’s decision as if she had determined Petitioner was not self-directing. (AR 22.) Thus, the error does not necessarily require the Department’s decision must be set aside.

[Given the error by the ALJ in her interpretation of MPP section 30-757.171, the court need not examine whether the ALJ’s decision on self-direction is supported by her findings.]

As a person diagnosed with Down Syndrome (AR 487), Petitioner meets the requirement of mental impairment or mental illness under MPP section 30-757.171. The ALJ made such a finding (AR 21. [“Here, the claimant’s Down Syndrome diagnosis is not in dispute. Therefore, it is undisputed that the claimant is mentally impaired.”]) As nonself-directing is not a separate requirement and as Down Syndrome qualifies as a mental impairment, to qualify for protective supervision services Petitioner must also be in need of 24-hour-a-day supervision to allow her to remain at home safely. (See also ACL No. 15-25, p. 5.)

“ . . . the next step in the protective supervision analysis requires a determination of whether [Petitioner] is likely to engage in potentially dangerous activities. Here, [Mother] testified that [Petitioner] will engage in dangerous behaviors, specifically, eloping, unsafe use of Ajax cleaning powder, touching very hot items and turning knobs on the gas oven.

The Administrative Law Judge determines that the claimant is likely to engage in the dangerous behavior of eloping. . . . Based on the evidence, it is determined that the claimant does elope, however, she does not elope frequently enough to require constant supervision. Therefore, protective supervision cannot be authorized as the claimant does not elope from the home frequently enough to require constant supervision.

. . . Here, the evidence shows [Mother] eliminated the risk of this dangerous behavior by moving all of the cleaning products to the garage area. As a result of this action, the claimant has been unable to access cleaning products, and has not engaged in this behavior in approximately three years.

. . . Here, the evidence shows that the claimant’s behavior is predictable, as the claimant will attempt to touch the clothing iron every time [Mother] irons. Similarly, the claimant will attempt to touch the teapot every time [Mother] uses the teapot.

Regarding claimant’s behavior of opening the oven door, the Administrative Law Judge has considered the evidence and finds that this behavior is not dangerous. Here, [Mother] testified that the claimant will open the oven door to see what is cooking inside. [Mother] further testified that the claimant has not placed her hands inside the oven. Opening an insulated oven door by the handle is not a dangerous behavior.

. . . Here, [Mother] testified that the claimant will engage in this behavior in the morning, when [Mother] is in the shower. Additionally, [Mother] testified that the claimant will occasionally engage in this behavior in the afternoon, when [Mother] is cooking in the kitchen. The evidence shows that the claimant’s behavior is predictable, and it occurs at certain times of the day.” (AR 22-25.)

The parties dispute whether the decision—Petitioner does not need 24 hours-a-day of protective supervision to remain in the home—is supported by the findings. Petitioner contends the flaw in the Department’s decision is its failure to consider what Petitioner would “do if left alone.” (RJN, Ex. B, p. 21.) Petitioner argues the focus must be on whether Petitioner in “unable to perform the service” herself such that she could not “safely remain” in her home. (Welf. & Inst. Code § 12300, subd. (a).) Petitioner contends Petitioner’s family “prevents dangerous behaviors and masks the potential for engaging in them.” (Opening Brief 9:5-6.)

The Department does not specifically respond to Petitioner’s claim it failed to assess Petitioner’s needs without regard to Petitioner’s household members acting to protect her. Certainly, as Petitioner is an adult, Mother and Petitioner’s other household members have no legal obligation to provide care for Petitioner.

This issue is subject to independent review. The court agrees with Petitioner. The ALJ’s decision is incomplete; it fails to consider Petitioner’s needs outside of the context of Mother and other household members. (See Miller, supra, 148 Cal.App.3d at 862.)

A 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 Ass’n for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514-515 (Topanga).) “[I]mplicit in 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.” (Id. at 515.)

Here, the court generally agrees with the Department that the ALJ persuasively explains why Petitioner’s dangerous behaviors are either predictable, infrequent, not dangerous, or had been eliminated by environmental modifications in the context considered by the ALJ—Petitioner living with her family. Petitioner correctly argues the ALJ’s findings are fundamentally flawed because they approach Petitioner’s situation at the outset as if Petitioner’s parents are present and required to supervise her. Alternatively, the ALJ’s findings just do not properly consider Petitioner’s need for protective supervision services.

Petitioner is an adult. Mother and other members of the household have no legal obligation to supervise Petitioner.[4] (Miller, supra, 148 Cal.App.3d at 869.) The Department’s assessment criteria suggest the correct approach is to assess risk as if Petitioner’s parents are not present, and Petitioner is instead alone. (RJN, Ex. B, ACL No. 06-34E2,[5] Attachment B at pp. 19, 21-22.) Reliance on Mother or other household members to protect Petitioner cannot be used to deny Petitioner protective supervision benefits or to justify a failure to consider Petitioner’s needs if where were alone. (See Miller, supra, 148 Cal.App.3d at 862.)

There is evidence Petitioner “struggles with safety awareness and requires someone nearby at all times to avoid injury or harm. She will run/wander away on occasion when not paying attention in the community.” (AR 143 [IPP distributed 6-25-18].) The regional center recorded Petitioner’s risk and potential for harm just one year prior to the social worker’s initial reassessment.[6] (AR 3, 142, 150.) The social worker noted Petitioner did not know why one would call 911.[7] (AR 486-487.) Mother testified Petitioner attempts to elope from home when Mother is not nearby.[8] (AR 7.)

Based on the foregoing, the petition is granted. The matter is remanded to the Department for reconsideration in light of the court’s opinion. The Department shall consider Petitioner’s needs for protective supervision services. That is, whether Petitioner is “unable to perform the service” herself such that she could not “safely remain” in her home without the services. (Welf. & Inst. Code § 12300, subd. (a).)

[1] Provided in Ex. A of the RJN.

[2] Provided in Ex. D of the RJN.

[3] “Petitioner is not claiming that the findings are not supported by the evidence, pursuant to C[ode of Civil Procedure section] 1094.5(c). Accordingly, the Court need not reweigh the evidence and make its own findings.” (Opening Brief p. 1 fn. 3.)

[4] The Department’s risk assessment criteria suggests the following relevant question: “What would you do if your provider were unable to come to work one day?” (RJN, Ex. B, ACL No. 06-34E2,[4] Attachment B at p. 21.) The assessment must consider Petitioner’s needs as an adult without legally required supervision.

[5] Provided in RJN Ex. B.

[6] The evaluation is dated September 18, 2017 and distributed June 25, 2018.

[7] Petitioner’s Individualized Educational Program stated Petitioner knew how to call 911. (AR 5.)

[8] The social worker testified there is an alarm that sounds every time a door is opened where Petitioner lives. The social worker deemed the alarm an environmental change “where Protective Supervision” is not needed. The alarm, however, does not prevent the behavior. Presumably, it merely alerts Mother that Petitioner has opened the door such that elopement is possible. (AR 479.) Thus, it is Mother or another member of the household who are able to prevent any elopement.