Judge Stephen I. Goorvitch, Case Number: 24STCP01855, Date: 2025-02-05 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP01855, Date: 2025-02-05 Tentative Ruling

Petitioner Leslie Tardif (“Petitioner”) seeks a writ of mandate directing Respondent Jennifer Troia, Director of the California Department of Social Services (“Respondent” or the “Director”) to set aside a final administrative decision denying protective supervision under the In-Home Supportive Services program to Petitioner’s son, Andre Tardif (“Claimant” or “Andre”). The petition is denied.

“In 1973 the Legislature enacted the In-Home Supportive Services (IHSS) program to enable aged, blind or disabled poor to avoid institutionalization by remaining in their homes with proper supportive services.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 867.) The IHSS program is governed by Welfare and Institutions Code sections 12300, et seq., and the Department’s Manual of Policies and Procedures (“MPP”), sections 30-700, et seq. The Department issues additional guidance on IHSS benefits in All-County Letters (“ACLs”). Some pertinent provisions of the MPP and ACLs are summarized in the administrative decision and included in Petitioner’s request for judicial notice. (See Pet. Exh. B & RJN Exhs. A-C, E.)

Protective supervision is an IHSS supportive service. (Welf. & Inst. Code § 12300(b).) “Protective supervision” consists of observing recipient behavior and intervening as appropriate to safeguard the recipient against injury, hazard, or accident. (MPP § 30- 757.17.) During the time relevant to this petition, protective supervision was defined as a benefit available for observing the behavior of “non-self-directing, confused, mentally impaired, or mentally ill persons only.” (MPP § 30-757.171 [emphasis added]; Pet. RJN Exh. A at 70.) On or about July 1, 2024, Respondent amended its regulations to state: “Protective Supervision is only available for observing the behavior of individuals who are non-self-directing, per MPP Section 30-701(n)(3), and have a mental impairment or mental illness.” (Pet. RJN Exh. C at 2 & Opening Brief 9:17-22 [emphasis added].)

For purposes of this petition, protective supervision is only authorized if “[a]t the time of the initial assessment or reassessment, a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely.” (MPP § 30-757.173(a).) Protective supervision is provided because of functional limitations of the recipient and cannot be authorized for routine childcare or supervision. (MPP § 30-763.456(d).) Furthermore, “[p]rotective 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.” (ACL 15-25 at 5; Pet. RJN Exh. B.)

California law requires social services staff to request “that a person requesting protective supervision submit [medical] certification to the county.” (Welf. & Inst. Code § 12301.21(b).) That certification is made on a standard form (the “SOC 821”), which must be completed by a physician or other qualified medical professional. (MPP § 30-757.173(a)(1).) “The completed form SOC 821 (3/06) shall not be determinative, but considered as one indicator of the need for Protective Supervision.” (MPP § 30-757.173(a)(3).) Other pertinent information in assessing the need for protective supervision includes the social worker’s interview with the recipient. (MPP § 30-757.173(a)(5).)

MPP section 30-757.172 specifies five circumstances in which protective supervision is not authorized: (a) For friendly visiting or other social activities, (b) When the need is caused by a medical condition and the form of the supervision required is medical, (c) in anticipation of a medical emergency; (b) To prevent or control anti-social or aggressive recipient behavior; and (e) To guard against deliberate self-destructive behavior, such as suicide, or when an individual knowingly intends to harm himself/herself. (MPP § 30-757.172.)

The Department’s regulations, and case law, define the purpose and form of protective supervision, which, in essence, determines the eligible recipients of this benefit. . . . “Some recipients are old, suffering degenerative diseases. Others are young but retarded, epileptic, blind, brain damaged or schizophrenic. The recipients cannot protect themselves from injury.”

(Calderon v. Anderson (1996) 45 Cal.App.4th 607, 614-615, quoting Miller v. Woods, supra, 148 Cal.App.3d at 867.) “‘Protective supervision’ appears to be similar to care given small children, that is, anticipating everyday hazards and intervening to avert harm.” (Calderon, supra, 45 Cal.App.4th at 615.) Significantly, “protective supervision is available if ‘[a]t the time of the initial assessment or reassessment, a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely.’” (Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 754, quoting MPP § 30-757.173(a).)

Claimant was 25 years old at the time of his IHSS assessment in 2021. (AR 32, 110, 120.) Claimant is diagnosed with cerebral palsy, intellectual disability, and ADHD. (AR 15, 32, 128, 198.) Claimant requires the use of support, such as crutches or a walker, to ambulate within his home and he uses a wheelchair for longer distances. (AR 4, 129, 172.) Claimant lives with his parents, who are his conservators. (AR 72-73.) Petitioner is Claimant’s mother and his IHSS provider. (AR 172.)

On July 21, 2021, Los Angeles County (the “County”) denied Claimant protective supervision but authorized IHSS hours in the amount of 113 hours and 40 minutes per month, effective July 1, 2021. (AR 32-32.) The County authorized IHSS hours for multiple service areas, including time for meal preparation and cleanup; ambulation (help with walking); and transfers (moving in and out of bed and on and off seats). (AR 32-33, 164.) Petitioner appealed the County’s decision on October 1, 2021, seeking additional IHSS hours for dressing, ambulation, medical accompaniment, and paramedical services, as well as protective supervision. (AR 33.)

On December 1, 2021, administrative law judge Patricia Lee Connors (“ALJ Connors”) presided over a hearing for the appeal. (AR 31, 203.) Petitioner appeared with her authorized representative, while a County hearing representative and a social worker appeared on behalf of the County. (AR 204.) On December 29, 2021, ALJ Connors issued her post-hearing decision, which was adopted by Respondent. (AR 31-32.) Although ALJ Connors found that Claimant has a qualifying mental impairment (AR 42), ALJ Connors denied Claimant protective supervision based on the finding that he is “not non self-directing as that term is meant within the context of eligibility for protective supervision.” (AR 45, 66.) However, ALJ Connors increased the IHSS hours for Claimant in several respects, including increases in Claimant’s ambulation and transfer hours to 1 hour and 33 minutes per week and 2 hours and 20 minutes, respectively. (AR 34.)

On July 19, 2021, Petitioner filed a petition for writ of administrative mandamus, challenging the December 29, 2021, decision denying protective supervision. (AR 25.) The writ petition resulted in a settlement requiring Respondent to set aside and reconsider the decision solely on the issue of Petitioner’s eligibility for protective supervision. (AR 23-27.)

On or about June 14, 2023, administrative law judge Jose Masso (“ALJ Masso”) conducted a rehearing on the record pursuant to the parties’ settlement agreement. (AR 2.) Following a de novo review of the evidence, ALJ Masso found that Claimant was ineligible for protective supervision because he is self-directing and also, even assuming Claimant is non-self-directing, because his behaviors did not qualify for or justify 24-hour protective supervision. (AR 3, 19-21.) Respondent adopted the ALJ’s proposed decision as the final decision of the Department. (AR 2.) This writ petition followed.

Under Code of Civil Procedure 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. (Code Civ. Proc. § 1094.5(b).)

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

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.) When an appellant challenges “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [her] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 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.)

Under section 1094.5(b), an abuse of discretion is established if the decision is not supported by the findings. (See Topanga Assn. for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 515.) Significantly, however, “[a]dministrative 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.) Administrative findings “need not be stated with the precision required in judicial proceedings.” (Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, 884.) “In addition, findings are to be liberally construed to support rather than defeat the decision under review.” (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421, citation omitted.)

The court exercises its independent judgment on questions of law arising in mandate proceedings. (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

Petitioner’s request for judicial notice of Exhibits A through E is granted. Respondent’s request for judicial notice of Exhibit 1 is granted.

In her opening brief, Petitioner states that she “is not claiming that the findings are not supported by the evidence.” (Opening Brief (“OB”) 1, fn. 4.) Accordingly, Petitioner concedes that the weight of the evidence supports the administrative findings, and she has forfeited argument on that issue. (Code Civ. Proc. § 1094.5(c); Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [“When an appellant fails to raise a point, … we treat the point as waived.”].)

Instead, Petitioner contends that Respondent’s decision “misinterprets and misapplies the proper legal standards for evaluating Andre’s need for protective supervision . . . , and . . . is not supported by its own findings.” (OB 1:18-19.) Since Petitioner concedes that the evidence supports the findings, these arguments may be decided based on the face of the administrative decision. (See OB 1, fn. 4 [stating that “the Court need not reweigh the evidence”].) Further, Petitioner may not challenge the administrative decision based on a selective presentation of evidence in the record or the findings made by Respondent. (See Toigo, supra, 70 Cal.App.4th at 317 [in an administrative writ proceeding, “all material evidence on the point must be set forth and not merely [the petitioner’s] own evidence.”].) The court considers each of Petitioner’s contentions, in turn.

Petitioner argues, at length, that Respondent prejudicially abused her discretion in treating non-self-direction as an independent requirement for protective supervision. (OB 7-10.) The court need not decide these arguments, however, because Respondent states in the decision that Claimant did not qualify for protective supervision even “[a]ssuming Claimant is nonself-directing.” (AR 19.) Thus, by logical extension, the decision makes clear that Respondent would have denied protective supervision even if non-self-direction was not an independent requirement for protective supervision.

Respondent found that Claimant’s “falling behavior” does not qualify for protective supervision because it is predicable and already covered in other IHSS hours:

Here, Claimant’s falling behavior when exiting the car or from other seated positions is predictable. Claimant obviously can only fall when getting out of a car after he is first in the car. Thus, it is predictable that every time Claimant gets in a car, when he tries to exit he will fall when trying to get out. Additionally, Claimant’s mother stated that will likely fall if he tries to get up out of bed, furniture, or the car. Relatedly, Claimant will sit down without being careful and will fall. As such, when Claimant gets in a seated position, it is predictable that he will fall when attempting to get up. Thus, the behavior is predictable and Protective Supervision cannot be authorized.

Of additional note, per the Notice of Action and assessment notes attached to the County’s Statement of Position, Claimant was assigned a Rank 3 for Transfer and authorized 59 minutes per week. These hours are specifically allocated to Claimant to assist with the safe transfer to and from a seated position. Thus, Claimant is already receiving hours and funding for assistance to get up and sit down to prevent injury and to keep Claimant safe in his home.

Petitioner contends that Respondent misapplied the “predicable” behavior exception in ACL 15-25 to exclude Claimant’s fall risk as a dangerous behavior eligible for protective supervision. (OB 10-12.) Specifically, Petitioner contends that Respondent’s decision “makes no finding . . . as to whether Claimant ‘gets in a seated position’ at certain times of the day”; that Claimant’s “parents have no way to know when during the day Andre will need assistance transferring or ambulating”; and “[t]herefore, the County’s authorization of 59 minutes per week in the transfer service should have no effect on whether he deserves protective supervision.” (Ibid.)

Protective supervision is only authorized if “[a]t the time of the initial assessment or reassessment, a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely.” (MPP § 30-757.173(a).) In ACL 15-25, the Department provided the following clarifications regarding this policy:

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.

(Pet. RJN Exh. B at 5 [emphasis added].) In ACL 17-95, Department further clarified these policies with respect to protective supervision (“PS”) eligibility for fall risk:

For PS-eligibility, the reason for the fall risk must be related to the individual’s mental impairment/illness. PS shall not be authorized solely due to one’s inability to ambulate safely, thereby creating an increased risk of fall. For example, PS would be authorized for a recipient considered to have fall risk tendencies if she is unable to walk unassisted, but, due to a mental impairment, she forgets and frequently attempts to walk on her own.

Petitioner interprets ACL 15-25 to require Respondent to make a finding that dangerous behavior is predicable because it occurs only at specific times of day that could be identified and known by Claimant’s parents. (OB 10-11, fn. 11 and 12:18-20.) However, exercising its independent judgment on the legal question, the court does not interpret the “certain times of the day” guidance in ACL 15-25 to require a strict temporal finding. Rather, ACL 15-25 is reasonably interpreted to require a finding that the timing of the dangerous behaviors is sufficiently knowable such that they can be predicted and there is not a need for constant supervision. This interpretation is supported by the ACL’s statement, in the alternative, that “unpredictable episodic behavior does meet the 24/7 requirement, as the need for supervision is constant.” (emphasis added.) Respondent applied ACL 15-25 in a manner consistent with this interpretation when she found that it is predictable that Claimant will fall when getting out of a car, bed, or furniture or when sitting down. (AR 19-20.)

Contrary to Petitioner’s assertions, Respondent made sufficient findings to support the decision that Petitioner’s fall risk does not justify 24-hour protective supervision. As a preliminary matter, Petitioner ignores findings about Claimant’s self-direction and mental impairment, including that Claimant “is oriented” and uses judgment to complete academic work or play video games, that provide context for the determination about whether protective supervision for Claimant’s fall risk is needed. (See AR 15-19.) Petitioner cannot challenge the administrative decision based on a selective presentation of the evidence and administrative findings. (See Toigo, supra, 70 Cal.App.4th at 317 [in an administrative writ proceeding, “all material evidence on the point must be set forth and not merely [the petitioner’s] own evidence.”].)

Furthermore, Respondent sufficiently explained in her findings how Petitioner’s fall risk is predicable because it occurs when Claimant is getting out of a car, bed, or furniture or when he is sitting down. (AR 19-20.) As noted in the decision, Claimant was granted substantial IHSS hours for ambulation and transfer. (AR 19-20, 34.) Respondent found that “[t]hese hours are specifically allocated to Claimant to assist with the safe transfer to and from a seated position. Thus, Claimant is already receiving hours and funding for assistance to get up and sit down to prevent injury and to keep Claimant safe in his home.” (AR 19-20.) Ambulation refers to help with walking, and transfers refers to help moving in and out of bed or of and off seats. (See Oppo. 8:14-15, citing AR 32-33, 164.) Petitioner has not argued, or shown with evidence, that the hours granted for ambulation and transfers were insufficient to ensure Claimant’s safety. It is reasonable to infer from the decision that when the reported fall risk behavior occurs, it is during a time when Petitioner will be providing ambulation and transfer services to Claimant – services that directly abate Claimant’s fall risk. Accordingly, Respondent reasonably concluded that no need for protective supervision exists at this time for Claimant’s fall risk because it is predicable and is already covered in other IHSS hours.

Petitioner suggests a level of detail and precision in the administrative findings that is not required by law. As examples, Petitioner contends that “the Decision should have considered Andre sitting down and falling as a dangerous behavior eligible for protective supervision.” (OB 10, fn. 6.) However, the findings show that Respondent did consider Claimant’s fall risk from sitting down. (AR 19-20.) In reply, Petitioner states that “the Decision never finds whether Andre’s fall risk requires 24-hour-a-day supervision.” (Reply 3:9-10.) Not so. The decision expressly concludes that 24-hour supervision is justified for Claimant’s fall risk. (AR 19-20.) Significantly, “[a]dministrative 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.) “In addition, findings are to be liberally construed to support rather than defeat the decision under review.” (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421, citation omitted.)

Petitioner has not shown a prejudicial abuse of discretion in Respondent’s findings that Claimant’s fall risk does not justify protective supervision. (Code Civ. Proc. § 1094.5(b).)

Respondent found that “Claimant’s behavior of slamming his hand or punching holes in the wall is not covered by Protective Supervision” because it is “antisocial or aggressive recipient behavior” under MPP section 30-757.172(d). (AR 20.) Petitioner contends that this finding misapplied MPP section 30-757.172(d), as interpreted in ACL 17-95, because it did not consider whether Claimant’s behavior was “directed to harm another individual.” (OB 13:5.)

MPP section 30-757.172 specifies five circumstances in which protective supervision is not authorized, including: (d) to prevent or control anti-social or aggressive recipient behavior; and (e) to guard against deliberate self-destructive behavior, such as suicide, or when an individual knowingly intends to harm himself/herself. (Pet. RJN Exh. A at 70.) In ACL 17-95, Department provides, in relevant part, the following guidance for this policy:

Assessing PS-eligibility, due to a recipient’s (minor or adult) combative behavior, shall be evaluated based upon the willfulness of that behavior. As with all services, the recipient’s age and specific behavior shall be considered….

However, a recipient who has a mental impairment/illness and is determined to be nonself-directing, due to the mental impairment/illness, but exhibits anti-social or aggressive behavior (e. g. pulling hair, scratching, hitting) directed to harm another individual, would be ineligible for PS. [MPP Section 30-757.172 (d)].

Contrary to Petitioner’s assertion in the opening brief, neither MPP section 30-757.172 nor the Department’s guidance in ACL 17-95 state that only a behavior that is physically directed to harm another individual will qualify as “anti-social or aggressive” within the meaning of the regulations. Nor do they state that a behavior that causes physical harm to the claimant cannot also be “antisocial or aggressive” behavior directed at another person. Further, under section 30-757.172(e), intentional self-destructive behavior, done with the knowledge that the activity may cause self-harm, is not eligible for protective supervision. Petitioner has not shown that Respondent misinterpreted MPP section 30-757.172(d) or ACL 17-95. Petitioner also has not shown a prejudicial abuse of discretion since the conduct at issue also appears excludable under section 30-757.172(e).

In reply, Petitioner argues that Respondent did not make sufficiently detailed findings about Claimant’s “antisocial or aggressive recipient behavior.” (Reply 5:15-22.) The court disagrees. When the decision is read in full, there are sufficient findings that the Claimant’s behavior of slamming his hand or punching holes in the wall does not qualify for protective supervision because it is “antisocial or aggressive recipient behavior” under MPP section 30-757.172(d). (AR 20; see also AR 4-7, 15-19.) Further, as noted, “[a]dministrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co., supra, 191 Cal.App.3d at 954.)

Petitioner has not shown a prejudicial abuse of discretion in Respondent’s findings that Claimant’s antisocial or aggressive recipient behavior does not justify protective supervision. (Code Civ. Proc. § 1094.5(b).)

Claimant’s behavior of grabbing hot items off the stove without being aware they are hot or getting to [sic] close to the burners is predictable. Specifically, Claimant does not cook, per his admission to SW. The inference to draw then is that someone else must turn on the stove for the potentially hazardous behavior to occur. As such, it is predictable that when someone turns the stove on Claimant is at risk for touching hot items on the stove or get too close to the burners. Therefore, the behavior is predictable and Protective Supervision cannot be authorized.

(AR 20.) Petitioner argues that these findings do not support the decision because, even if Claimant does not cook, “that does not rule out the possibility of [Claimant] turning on the stove himself and getting too close to the burners or grabbing items that became hot from his turning on the stove.” (OB 14:21-23.) Petitioner’s arguments are not persuasive. The decision sufficiently explains the evidence supporting the inference that “someone else must turn on the stove for the potentially hazardous behavior to occur.” (AR 20.) Petitioner’s argument that there is a “possibility” that Claimant could turn on the stove himself is speculation and does not show any deficiency in the findings. Petitioner does not challenge the adequacy of the evidence and, even if she did, Petitioner does not cite any evidence of Claimant ever attempting to use the stove himself or turn on the stove himself. Indeed, Petitioner testified that her concern was that Claimant gets too close to the burners when Petitioner is cooking. (AR 238:4-5.)

Petitioner has not shown a prejudicial abuse of discretion in Respondent’s findings that Claimant’s behaviors related to the stove do not justify protective supervision. (Code Civ. Proc. § 1094.5(b).)

Finally, Petitioner argues that “although Andre is a conserved adult, the Decision never mentions his age or the critical fact that he lives at home with his parents … [and] never considers what Andre would do if he were ‘left alone’ at home, as required by state assessment guidelines.” (OB 13-14.) As support, Petitioner cites ACL No. 06-34E2, Att. B, 19, 21, 22, which was not included in Petitioner’s request judicial notice. Regardless, the decision’s findings show that Respondent adequately considered Claimant’s age and the fact that he lives at home with his parents. (See AR 4-7, 15-20.) These “findings are to be liberally construed to support rather than defeat the decision under review.” (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421, citation omitted.) Petitioner’s selective discussion of only parts of the decision is not persuasive. Further, as discussed above, Respondent made sufficient findings to support the decision that Claimant’s dangerous behaviors do not justify protective supervision when the other IHSS hours provided for Claimant are considered. Petitioner has not shown a prejudicial abuse of discretion in the decision. (Code Civ. Proc. § 1094.5(b).)

[1] The court automatically substitutes Jennifer Troia for Kimberly Johnson as Respondent, the latter having resigned after this petition was filed.